Third DCA Applies Federal Standards for Florida Whistleblower Coverage
The Florida private sector Whistleblower's Act ("FWA") covers "any private individual, firm, partnership, institution, corporation, or association that employs ten or more persons." See section 448.101, Florida Statutes. However, the statute does not address the circumstances under which the number of employees at two related firms can be aggregated for purposes of establishing liability under the FWA.
In Diaz v. Impex of Doral, Inc. (Fla. 3d DCA, March 18, 2009), the Third District Court of Appeals held that the trial court erred in not applying the federal "single employer" and "joint employer" doctrines to a case brought under the FWA.
As explained by the United States Court of Appeals for the Second Circuit,
A "single employer" situation exists "where two nominally separate entities are actually part of a single integrated enterprise so that, for all purposes, there is in fact only a 'single employer.'" The single employer standard is relevant when "separate corporations are not what they appear to be, that in truth they are but divisions or departments of a 'single enterprise.'"
In contrast, in a "joint employer" relationship, there is no single integrated enterprise. A conclusion that employers are "joint" assumes that they are separate legal entities, but that they have merely chosen to handle certain aspects of their employer-employee relationships jointly.
Clinton's Ditch Coop. Co. v. NLRB, 778 F.2d 132, 137 (2d Cir. 1985) (citations omitted) (cited by the Eleventh Circuit Court of Appeals in Virgo v. Riviera Beach Assocs., 30 F.3d 1350, 1360 n.6 (11th Cir. 1994)).
In Diaz, the plaintiff, Luis Diaz, claimed that the forklift he was operating, which was owned by defendant Impex of Doral Logistics ("Impex Logistics"), was unsafe and improperly maintained, in violation of the Occupational Safety and Health Administration’s (“OSHA”) regulations. Diaz alleged that when he complained about the safety of the forklift, defendant Impex of Doral ("Impex"), from whom Diaz received a paycheck, unlawfully retaliated by terminating his employment. Oscar Perez, the manager of both Impex and Impex Logistics, fired Diaz. The action proceeded to a jury trial.
At trial, Diaz presented evidence of the close operational relationship between Impex and Impex Logistics. Nevertheless, Impex Logistics moved for directed verdict against Diaz, asserting it did not have the required number of employees to make it liable as an “employer” under the FWA. Diaz’s attorney did not dispute that Impex Logistics, by itself, did not have the requisite number of employees to make it a covered employer under the FWA. However, he argued that the jury could find that Impex and Impex Logistics were either a “single employer” or a “joint employer” of Diaz. The trial court declined to apply these federal concepts and granted Impex Logistics' motion for directed verdict.
The Third DCA reversed. Citing its earlier decision in Martinolich v. Golden Leaf Management, Inc., 786 So. 2d 613 (Fla. 3d DCA 2001), the court held that the federal “single employer” and “joint employer” doctrines are applicable in FWA actions.
The Diaz holding is not surprising. It is not unusual for Florida courts to borrow employment law doctrines from federal courts, which generally have more experience in the area of employment law. Moreover, the Third DCA had expressly ruled in 2001 that the federal “single employer” and “joint employer” doctrines are applicable in FWA actions. It is not clear from the Diaz opinion why the trial court did not follow this authority.
What is clear from the Diaz decision is that employment practitioners in Florida should be fully versed in both Florida and federal law to serve their clients well.
