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Whistle-blowing test: Did employer break law?

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Employees who report concerns that co-workers are breaking the law may view themselves as whistle-blowers—and may believe that makes them untouchable if they themselves have done something wrong. Not true!

First, whistle-blowing has to involve wrongdoing on the part of the employer, not just one employee. Without some evidence that the employer supported the alleged wrongdoing, there’s no protection under the Florida Whistleblower Act (FWA).

Second, even legitimate whistle-blowers don’t have unlimited protection. Employers that can show they fired a whistle-blower for a legitimate reason aren’t liable for retaliation.

Recent case: Gabe McIntyre worked as a pharmacist at a supermarket. Almost immediately, he began complaining about perceived problems with the way the store was run. He talked to managers, HR and corporate headquarters. Among his allegations: another pharmacist was filling fraudulent prescriptions for customers illegally seeking drugs.

At the same time, management received complaints from customers and others about McIntyre. One woman said she would never go to the store again because of his rude behavior. Another complained that he called her “sweetheart.”

The company transferred McIntyre to a different store, ostensibly to provide him with a fresh start. More complaints soon followed. This time, the company fired McIntyre.

He sued, alleging retaliation because of what he called whistle-blowing.

The court disagreed. First, it concluded McIntyre’s actions didn’t amount to whistle-blowing under the FWA because he hadn’t complained that the company was engaged in illegal acts—just that he suspected a pharmacist was.

Second, it said that even if McIntyre was a whistle-blower, the company had legitimate reasons to fire him: He was insubordinate and had a poor attitude. (McIntyre v. Sweetbay Supermarket, No. 09-12675, 11th Cir., 2010)

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