A stronger defense for employers, but the standard still has teeth. 

On May 28, 2026, the Florida Supreme Court decided Gessner v. Southern Company, resolving a split among Florida’s appellate courts over what an employee must prove under the Private Sector Whistle-Blower’s Act, section 448.102(3). The ruling favors employers, but it is not a clean sweep. 

The Court rejected the “good faith, objectively reasonable belief” standard previously applied by the Fourth District, the court governing Broward, Palm Beach, and Miami-Dade counties. Going forward, an employee must show that the conduct they objected to is, by definition, a violation of law. Subjective belief is not enough. The Court did not require a completed or adjudicated violation, though. Conduct that would definitionally violate the law can still support a claim, even if it had not yet occurred at the time of termination. 

“A plaintiff must establish . . . by a preponderance of the evidence . . . that the activity, policy, or practice to which he or she objected is, by definition, in violation of a law.” — Gessner v. Southern Company, Fla. (2026) 

Employees raising safety concerns without tying them to a specific legal violation now face a higher bar, particularly at summary judgment. Employers defending whistleblower claims should assess whether the plaintiff can identify an actual legal violation, not just a subjective grievance. 

If you have questions about how this ruling may affect your business, contact David S. Harvey, Board Certified in Labor and Employment Law by The Florida Bar.  

David S. Harvey
Partner and Business Unit Leader, Labor and Employment
Kelley Kronenberg-Tampa, FL.
(813) 223-1697
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