On May 28, 2026, the Florida Supreme Court issued a decision that brings long-awaited clarity to one of the most frequently litigated questions under Florida's private-sector Whistleblower's Act (FWA). In Gessner v. Southern Co., No. SC2024-1835, the Court resolved a years-long split among Florida's appellate courts over what an employee actually has to prove to win a retaliation claim. For employers, the answer is meaningful: the standard is now higher than many plaintiffs had hoped, and the decision gives businesses a clearer framework for evaluating and defending these claims.
The Background
The case arose from a familiar fact pattern. Clint Gessner worked as a welder mechanic at a Gulf Power plant in Pensacola for about ten years. After a series of formal reprimands — the last involving his use of racially disparaging language in a meeting — Gulf Power terminated him. Gessner sued, claiming the real reason for his firing was that he had objected to a range of workplace safety practices he believed were illegal, including hydrogen line repairs performed while turbines were running, improper purging of natural gas lines, and coal dust buildup.
His claim rested on section 448.102(3) of the Florida Statutes, the provision of the FWA that protects employees who object to, or refuse to participate in, "any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation." The trial court granted summary judgment for the employer, and the First District Court of Appeal affirmed.
The Split the Court Had to Resolve
For more than a decade, Florida's appellate courts disagreed about how demanding section 448.102(3) really is. The Fourth District, in Aery v. Wallace Lincoln-Mercury (2013), had borrowed a standard from federal Title VII law and held that an employee only needed a "good faith, objectively reasonable belief" that the employer was breaking the law. Under that approach, an employee could prevail even if the conduct turned out to be perfectly legal, so long as the belief was reasonable.
The Second District (Kearns) and later the First and Fifth Districts took the opposite view, holding that the statute requires the employee to point to conduct that actually was a violation of law — not just one the employee sincerely believed was unlawful. The Supreme Court took the case to settle the conflict.
What the Court Held
The Court sided with the stricter line of cases and rejected the "reasonable belief" standard. Writing for the majority, Justice Couriel held that to prevail under section 448.102(3), an employee must prove — by a preponderance of the evidence — that the activity, policy, or practice he or she objected to is, by definition, a violation of a law, rule, or regulation. An employee's subjective, good-faith belief that something is illegal is no longer enough.
The reasoning turned on a single word in the statute: "is." The Court explained that the conduct must be something that is illegal as a matter of definition — meaning it would constitute a legal violation if carried out — rather than something the employee merely suspects or fears is unlawful. Because the Legislature used subjective language ("violation or suspected violation," "alleged") in other Florida whistleblower and wage statutes but pointedly did not do so here, the Court refused to read a "reasonable belief" requirement into section 448.102(3).
Applying that standard, the Court affirmed summary judgment against Gessner. He had offered evidence that he raised safety concerns and believed they were illegal, but he never tied those concerns to conduct that was, by definition, a violation of any specific law, rule, or regulation. Raising safety complaints, without more, was not enough.
An Important Nuance Employers Should Not Miss
The decision is not a blank check. The Court was careful to clarify that an employee does not have to prove a completed or adjudicated violation. In other words, the employer need not have already broken the law, and no agency or court need have ruled against the employer first. The Court rejected the "actual violation" framing to the extent it required a finished, unlawful act.
To illustrate, the Court used a hypothetical: an employee fired on the spot for refusing to dump hazardous waste into a waterway is protected — even though the dumping never happened — because the ordered act would, by definition, violate Florida's litter law. The takeaway is that prospective illegal conduct can still be protected; what matters is whether the objected-to activity is definitionally unlawful, not whether it has already occurred.
Practical Takeaways for Florida Employers
For Florida businesses, Gessner is a favorable and clarifying decision, but it should sharpen rather than relax your compliance practices.
First, the ruling gives employers a stronger basis to challenge FWA retaliation claims early. If a plaintiff cannot identify a specific law, rule, or regulation that the objected-to conduct would actually violate, the claim is vulnerable at the motion-to-dismiss and summary-judgment stages.
Second, do not treat this as license to ignore employee complaints. An employee who objects to conduct that genuinely is illegal — including conduct that has not yet happened — remains fully protected. The safest course is still to take safety and legal-compliance concerns seriously, document how they are investigated and resolved, and ensure that disciplinary and termination decisions are independently supported and well-documented.
Third, decisions to discipline or terminate an employee who has raised any kind of legal or safety objection should be reviewed carefully. Gessner helps on the "what was the objection" question, but employers still must be able to show a legitimate, non-retaliatory reason for the personnel action.