Termination of Employment Based on Testimony Given at a Judicial Proceeding

Did YOU OR SOMEBODY YOU KNOW GET FIRED from their job for giving truthful testimony at a judicial proceeding? We’d like to think that an employee who testifies truthfully about his or her employer (even if the testimony is critical) would be protected against retaliation from the employer. It’s hard to imagine that an employer can fire an employee simply because the employee testified negatively about the employer, as long as the employee was being truthful. Unfortunately, as you can see below, sometimes that’s exactly what an employer is allowed to do in Florida.

At-Will Employment in Florida

Florida is an at-will employment state. What this means, generally, is that your employer can fire you without cause to do so. In other words, your employer can fire you without a valid reason. You can be the best employee in the world, show-up early and never miss a day of work. Nonetheless, your boss can still fire you. Now, while your employer does not need a reason to fire you, there are a number of factors that your employer cannot use as a basis to terminate your employment, including:

  • your gender, race, color, national or ethnic origin, religion, or other protected characteristics
  • that you filed a worker’s compensation claim
  • that you reported illegal activity of the employer to a state governmental agency (what’s commonly known as whistleblowing)
  • that you filed a sexual harassment complaint
  • your exercise of family and medical leave rights

Florida Statutes § 92.57

One other interesting exception to ‘at-will’ employment in our state is found under Florida Statutes § 92.57, which says that if you testify in a “judicial proceeding in response to a subpoena,” you can’t be terminated from your employment because of the nature of your testimony or because you were absent from your employment while complying with the subpoena. So, as long as your giving of testimony falls within the provisions of this statute, your employer can’t legally fire you merely because you said something critical of the employer. In order to be protected under this statute, your testimony must be given:

1) in a judicial proceeding, and

2) in response to a subpoena.

What is a Judicial Proceeding?

The first and most obvious question is: what counts as a judicial proceeding? Testifying at a trial or court hearing will pretty clearly fall under the judicial proceeding umbrella. But after that, things get a little murkier. A hearing in front of a hearing officer for a state administrative agency would likely qualify as a judicial proceeding. In Wiggins v. S. Mgmt. Corp., 629 So. 2d 1022 (Fla. 4th DCA 1993), the court held that a hearing before the Florida Department of Labor and Employment Security counted as a judicial proceeding under § 92.57.

On the other hand, the Fourth District Court of Appeals recently held in Nunes v. Herschman, --- So.3d ---, 2021 WL 49908 (Fla. 4th DCA 2021) that a deposition does not qualify as a judicial proceeding for purposes of § 92.57. In that case, an employee was subpoenaed for deposition. At the deposition, the employee gave unfavorable testimony about his employer, and the employer subsequently terminated that employee. The employee then sued the employer for allegedly violating § 92.57. Id. The trial court dismissed the claim, finding that a deposition is not a judicial proceeding under § 92.57. The appellate court affirmed the dismissal and held that because no judge or judicial officer was present at the deposition, the deposition was not a judicial proceeding under the plain terms of § 92.57. Id.

Testimony Must be Given Under Subpoena

The second requirement of § 92.57 is that your testimony be given pursuant to a subpoena. According to at least one appeals court in Florida, if you testified “voluntarily” (i.e., you were not under a subpoena when you testified), then you aren’t entitled to the protections of § 92.57.

In the Wiggins case mentioned above, the plaintiff sued her former employer (an owner of a Burger King franchise) after she was fired allegedly in retaliation for testifying adversely toward her employer during another employee’s unemployment compensation hearing. But instead of testifying pursuant to a subpoena, she voluntarily appeared at the hearing. The court in Wiggins held that the statute clearly says that it applies only when a person testifies “in response to a subpoena.” Accordingly, the former employee couldn’t rely on § 92.57 for protection against termination and her wrongful termination case against the employer was dismissed.

The court in Wiggins rightly acknowledged “that there is a public policy interest to secure truthful testimony in all judicial proceedings. Ideally, no one should have to fear retaliatory employment termination as the result of their testimony.” Id. at 1024, n.2. And the court even encouraged the legislature to reconsider the question of whether a subpoena should be a prerequisite to receiving the protections of § 92.57. Regrettably, the Florida legislature has yet to revise the statute to remove the subpoena requirement.

Contact Our Office for a Free Consultation

If you were fired after you gave truthful testimony against your employer, contact our office to discuss your legal options. If we take your case, you don’t pay us anything up front. In fact, § 92.57 actually provides that persons unlawfully terminated due to a violation of the statute may be entitled to attorney’s fees and punitive damages from the employer.

We represent clients throughout all of Florida, and we offer free consultations via phone at (954) 833-1440, or via video chat, so you don’t even need to leave your home to discuss your case.