Florida Whistleblower Ruling: Gessner Raises the Bar for Retaliation Claims

The Florida Supreme Court held on May 28, 2026, that a private-sector whistleblower must prove the conduct he objected to was, by definition, in violation of law, not merely that he reasonably believed it was. The decision in Gessner v. Southern Company construes Fla. Stat. 448.102(3) and makes retaliation cases harder to win.

Information last verified on June 3, 2026. This is a developing story; we update it as the record changes.

Jurisdiction scope: This article addresses Florida private-sector Whistle-Blower's Act, Fla. Stat. 448.102(3), after Gessner v. Southern Company. It does not address the public-sector Act, Fla. Stat. 112.3187, or federal whistleblower statutes. For related coverage, see Florida at-will employment laws.

What Happened

In Gessner v. Southern Company, No. SC2024-1835 (Fla. May 28, 2026), the Florida Supreme Court resolved a long-running split over what a private-sector whistleblower must prove. Clint Shannon Gessner, a former welder mechanic at a Gulf Power plant in Pensacola, sued Gulf Power and its parent, Southern Company, claiming Gulf Power fired him in retaliation for objecting to alleged workplace safety practices. Justice Couriel wrote for the Court. The question was whether Fla. Stat. 448.102(3) requires proof that the objected-to conduct was an actual violation of law, or only that the employee held a good-faith, objectively reasonable belief that it was illegal. The Court held the statute requires proof that the employer activity, policy, or practice is, by definition, in violation of law. It approved the First District below, the Second District in Kearns, and the Fifth District in Drozd to the extent consistent with its opinion, and disapproved the Fourth District in Aery.

"We hold that, to prevail in a retaliation claim under section 448.103, Florida Statutes, alleging a violation of section 448.102(3), an employee must establish by a preponderance of the evidence that the employer's activity, policy, or practice is in violation of law ... not that the employer has already in fact violated the law, nor that the employee reasonably believed the employer violated the law." Gessner v. Southern Company, No. SC2024-1835 (Fla. May 28, 2026), slip op. at 1.

Justices Grosshans, Francis, and Sasso joined the opinion. Chief Justice Muñiz and Justice Labarga concurred in result; Justice Tanenbaum was recused.

What the Law Actually Says

Florida is an at-will employment state, so an employee suing for wrongful discharge generally must point to a contractual or statutory exception. The private-sector Whistle-Blower's Act, enacted in 1991, is one such exception. See Fla. Stat. 448.101-448.105. Section 448.101 supplies definitions, section 448.102 lists the prohibited retaliation, and section 448.103 creates the civil cause of action and remedies. Section 448.102 bars three kinds of retaliation: against an employee who discloses an employer violation to the government (subsection 1), who assists a government investigation into an alleged violation (subsection 2), and who objects to or refuses to participate in any activity, policy, or practice "which is in violation of a law, rule, or regulation" (subsection 3). Gessner involved subsection (3).

Before Gessner, Florida courts split on what subsection (3) required. The Fourth District, in Aery v. Wallace Lincoln-Mercury, LLC, 118 So. 3d 904 (Fla. 4th DCA 2013), borrowed the federal Title VII retaliation framework and protected an employee who held a good-faith, objectively reasonable belief that the conduct was illegal. The Second District, in Kearns v. Farmer Acquisition Co., 157 So. 3d 458 (Fla. 2d DCA 2015), read the text differently and required proof of an actual violation. Gessner adopted a text-driven middle reading: section 448.102(3) uses the verb "is" in its definitional sense, so the employee must show the conduct is, by definition, in violation of law. The Court declined to read the word "actual" into the statute, noting it would require no completed act or adjudication of illegality (slip op. at 17, 22). It contrasted this with the public-sector Whistle-Blower's Act, Fla. Stat. 112.3187(5)(a), which expressly reaches "any violation or suspected violation" of law, language the Legislature did not put in section 448.102(3).

This case sits at the intersection of two topics the site already covers. The whistleblower statute is a statutory carve-out from Florida at-will employment laws, one of several at-will employment exceptions by state. It is separate from the patchwork of federal whistleblower protections, which run through statutes like OSHA and the False Claims Act and have their own standards.

Analysis: Why This Matters

The following is analysis from the Recording Law Editorial Team.

The headline that Gessner makes private-sector retaliation cases harder to win is accurate, but the mechanism is narrower than a simple "actual violation now required" summary. The Court grounded its result in the text of section 448.102(3), reading the word "is" as definitional and rejecting two readings at once: the Fourth District subjective-belief test from Aery, and a literal "completed or adjudicated violation" requirement. The opinion expressly disapproved construing "actual violation" to demand a finished unlawful act or a finding of illegality (slip op. at 22), and it noted the word "actual" appears nowhere in subsection (3).

What changed in practical terms is the dispositive question. Under Aery, an employee in the Fourth District could survive summary judgment by showing a reasonable, good-faith belief that the employer broke the law. After Gessner, that belief, however sincere, does not carry the claim. The employee must come forward with evidence that the activity, policy, or practice he objected to is, by definition, in violation of an identified law, rule, or regulation, proven by a preponderance of the evidence. Gessner lost because he raised safety concerns to supervisors but did not tie them to conduct that was definitionally unlawful, and he advanced his OSHA General Duty Clause theory only in conclusory terms (slip op. at 22-23).

Two limits are worth flagging. First, the decision is not final as of June 3, 2026: it carries the standard notation that it is not final until the time to move for rehearing expires and any motion is determined. Second, Chief Justice Muñiz concurred only in the result and would have decided the case on its completed-conduct facts without reaching the majority discussion of conduct that has not yet occurred, which leaves the treatment of not-yet-occurred conduct open to future debate. The public-sector standard under section 112.3187 is untouched.

How This Affects You

For Florida private-sector employees, the ruling raises the evidentiary bar on a section 448.102(3) claim. A sincere belief that an employer is breaking the law, without more, is no longer sufficient; a claim now turns on whether the objected-to activity, policy, or practice is, by definition, in violation of an identifiable law, rule, or regulation. The change is most consequential in the Fourth District (covering Broward, Palm Beach, and other counties), where Aery had supplied the reasonable-belief test that Gessner disapproved.

For Florida private-sector employers, Gessner supplies a single statewide standard for defending these claims and forecloses arguments built solely on an employee subjective belief. None of this changes the public-sector Whistle-Blower's Act, Fla. Stat. 112.3187, which still protects reports of "any violation or suspected violation" of law, or the separate body of federal whistleblower law. Because the decision is developing and not yet final, and because how it applies depends heavily on the specific facts and the law allegedly violated, anyone weighing a claim or a defense should consult a Florida-licensed attorney.

This is general legal information, not legal advice. It covers Florida and reflects sources verified on June 3, 2026. Laws change and this story is developing; consult a lawyer licensed in your jurisdiction about your specific situation.

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Related articles

• Florida at-will employment laws
• at-will employment exceptions by state
• federal whistleblower protections

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Last updated: 2026-06-03. This is a developing story; details verified as of June 3, 2026.