Under a new ruling, law-abiding private employers in the Sunshine State can now feel a bit more secure even when their employees don’t. In February of 2017, the United States District Court for the Middle District of Florida held in the case of Graddy v. Wal-Mart Stores East that the Florida Whistleblower Act (FWA), which prohibits retaliation against an employee if they refuse to participate in an activity or policy that violates a law or regulation, does not apply if the employee merely believes the activity is illegal.
The case concerned a Wal-Mart pharmacy employee, Graddy, who discovered that a customer had submitted a prescription she suspected to be forged. After reporting the prescription to the originating doctor’s office, Graddy was told that police could not take action until she filled the fraudulent prescription. After speaking with the doctor’s office manager and an agent of the Ocala Police Department drug enforcement team, Graddy agreed to take part in a sting operation, in which she instructed another pharmacy technician to fill the forged prescription. The forger was immediately apprehended by police.
Although this story ended happily for the Ocala Police and the doctor’s office (if not for the forger), Graddy was not so lucky. Upon investigation by management, Graddy was terminated for violation of Wal-Mart’s internal “POM 1703” policy, which prohibits pharmacists from “filling a fraudulent prescription in furtherance of a law enforcement sting operation.” She soon filed suit, alleging that the POM 1703 policy was unlawful and that Wal-Mart, in violation of the FWA, had retaliated against for opposing it.
Graddy’s argument cited Aery v. Wallace Lincoln Mercury, LLC, in which the Fourth District Court of Appeals case held that it was a violation of the FWA to retaliate against an employee who “had a good faith, objectively reasonable belief” that an employer’s policy was illegal. Wal-Mart, in turn, cited the Second District Court of Appeals case, Kearns v. Farmer Acquisition Co., in which the court held that the FWA requires an employee to prove that “she refused to participate in an activity that would have been an actual violation of the law.”
As the Florida Supreme Court has not yet addressed the lower courts’ conflicting interpretations of the FWA, the Middle District Court was obligated to “attempt to apply the law as the Supreme Court of Florida would.” Although sympathetic to Graddy’s case, the Court was “persuaded that the Supreme Court of Florida would adopt Kearns rather than Aery” due to the “plain language” of the FWA, which specifies that the law applies to an employee who objects to “any activity, policy, or practice of the employer which is in violation of the law” (emphasis added).
Although the Aery “reasonable belief” holding has been popular with federal judges throughout Florida, it’s now reasonable to believe the Middle District “actual violation” holding will make it easier for employers to defend against FWA claims going forward. Under the Court’s decision, employees are responsible for knowing if a policy they object to is, in fact, illegal; just as employers are responsible for knowing and obeying the law when creating and enforcing their internal policies. Seems pretty reasonable!