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Your Rights Filing a Whistleblower or Retaliation Claim - Texas

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1. What legal protection does Texas provide employees in regard to whistleblowing and retaliation?

The general rule is that most employees may be fired at any time for any reason or for no reason at all under what is known as the at-will employment doctrine. However, in the past half-century, many exceptions to the general rule have emerged. Exceptions to this general rule can come from two sources: (1) courts, which modify and make "common law protections" or (2) the legislature, which enacts "statutory protections." Statutory protections tend to be specific, addressing certain subject areas (such as discrimination, workers' compensation, etc.). Yet, legislators often lack the foresight to address every possible situation of retaliation. Common law protections, on the other hand, tend to "fill the gaps" where no statute exists for a given situation.

Common Law Protections
Texas recognizes a public policy exception to the at-will employment doctrine. An employer may not discharge an employee for a reason that violates public policy. An employee has a cause of action in other words, the employee may sue for wrongful discharge when the motivation for the discharge violates public policy.

Unlike many other states, however, the public policy exception is a very narrow exception in Texas. An employee must demonstrate that the sole reason for the employee's discharge was because the employee refused to perform an illegal act that carries criminal penalties. To sue for wrongful discharge, an employee must therefore locate a specific criminal statute that the employer requested the employee to violate.

Statutory Protections
In addition, the Texas Legislature has adopted narrow statutory protections for certain activities. Employees who engage in protected activities under laws in the following subject areas are protected from retaliation: discrimination, general public evacuation, hazardous substances, health care employees, occupational safety and health, and workers' compensation.

Other Protections
In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.

2. What activities does state law protect, and to whom does this protection apply?

Common Law Protections
An employee may not be discharged for a reason that violates public policy. Texas courts have declared that this exception is narrow and only extends to employees who refuse to perform an illegal act. Furthermore, the illegal act must be under a state or federal law that carries criminal penalties. Thus, if an employee refuses to perform an illegal act, but the only punishment is a civil penalty, the employee is out of luck. For example, a pilot who alleged that he was fired for refusing to violate FAA "flight and rest time" regulations was unable to sue his employer because the regulations only carried civil penalties not criminal penalties.

An employee may be protected while the employee attempts to ascertain whether a requested action is criminal conduct. So, if the employer fires the employee for attempting to find out whether a requested act is criminal (such as by talking with a government agency), the employee may be able to sue for wrongful discharge.

Texas courts have rejected whistleblower claims under the public policy exception, declining to extend the narrow exception to protect employees who report illegal conduct. Whistleblowers must therefore rely on the narrow statutory protections below.

Statutory Protections
Child Abuse: An employee may not be retaliated against (or discriminated against) for reporting suspected child abuse. Tex. Fam. Code § 261.110.

Discrimination: An employee may not be retaliated against (or discriminated against) for opposing a discriminatory practice, making a discrimination charge, filing a discrimination complaint, or testifying, assisting, or participating in an investigation, proceeding, or hearing of discrimination. Texas law prohibits discrimination on the basis of race, color, disability, religion, sex, national origin, or age. Tex. Lab. Code Ann. § 21.055.

General Public Evacuation: An employee may not be discharged (or discriminated against) in retaliation for leaving the employee's place of employment to participate in a general public evacuation ordered under an emergency evacuation order. Tex. Lab. Code Ann. § 22.002.

Hazardous Substances: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, assisting an inspector, instituting a proceeding, testifying, or exercising a right under the Hazard Communication Act. The Hazard Communication Act requires employers to provide employees with information regarding hazardous chemicals in the workplace. Tex. Health & Safety Code Ann. § 502.017(c).

Health Care Employees: Employees in the health care profession are protected under numerous statutes:

  • Assisted Living Facilities: An employer who is licensed under Texas's Assisted Living Facilities laws may not retaliate against an employee for filing a complaint, presenting a grievance, or providing in good faith information relating to personal care services. Tex. Health & Safety Code Ann. § 247.068(a).
  • Hospice & Home Care: An employer who is licensed under Texas's Home and Community Support laws may not retaliate against an employee for filing a complaint, presenting a grievance, or providing in good faith information relating to home health, hospice, or personal assistance. Tex. Health & Safety Code Ann. § 142.0093(a). Additionally, a provider of home or community-based services may not retaliated against for reporting suspected abuse, neglect, or exploitation of the individual requiring home services. Tex. Hum. Res. Code § 48.257.
  • Hospitals: A hospital, mental health facility, or treatment facility may not discharge (or discriminate against) an employee for reporting violations of law. The report may be made internally to a supervisor or to a state regulatory of law enforcement agency. Tex. Health & Safety Code Ann. § 161.134(a).
  • Intermediate Care Facilities for the Mentally Retarded: An intermediate care facility for the mentally retarded may not discharge (or discriminate against) an employee for reporting violations of law, including violations of laws pertaining to such facilities. The report may be made to a supervisor, a state regulatory agency, or law enforcement agency. Also, employees who initiate or cooperate in an investigation or proceeding pertaining to the facility's care, services, or conditions are protected. Tex. Health & Safety Code Ann. § 252.132.
  • Nursing Homes: A nursing home or related institution may not discharge (or discriminate against) an employee for reporting violations of laws pertaining to nursing homes and related institutions, including reports of abuse and neglect. Also, employees who initiate or cooperate in an investigation or proceeding are protected. Tex. Health & Safety Code Ann. § 242.133.

In addition, nurses receive additional protection when reporting certain violations required by law. Tex. Occ. Code Ann. § 301.413(b).

Medicaid: An employee may not be discharged (or discriminated against) for reporting fraud or falsification of a Medicaid claim. Tex. Hum. Res. Code § 36.115.

Occupational Health and Safety: An employee may not be suspended or discharged in retaliation for reporting an alleged violation of an occupational health or safety law via the Safety Violations Hotline (through the Texas Department of Insurance, Workers' Compensation Division). The report must be made in good faith. Tex. Lab. Code Ann. § 411.082.

Public Employees: An employee may not be discharged (or discriminated against) in retaliation for reporting a violation of the law by their employing government entity or another public employee to a law enforcement authority. Tex. Gov't Code Ann. § 554.002. Additionally, neither public employees nor their supervisors or managers may be subject to retaliation for using the local government grievance process or for reporting a violation of the local government ethics code. Tex. Local Gov't Code Ann. § 160.006, § 161.157.

Workers' Compensation: An employee may not be discharged (or discriminated against) in retaliation for filing a workers' compensation claim in good faith. An employee is also protected if she has hired a lawyer to represent her in a claim, instituted a workers' compensation proceeding in good faith, or has testified in a proceeding. Tex. Lab. Code Ann. § 451.001.

3. How do I file a whistleblower or retaliation claim in Texas?

Generally: An employee may file a wrongful discharge lawsuit in an appropriate court. The lawsuit must be filed within 2 years Tex. Civ. Prac. %26amp; Rem. Code Ann. %26sect; 16.003. of the retaliatory action, unless otherwise specified by statute. If you believe you have a claim, you should contact a lawyer.

Discrimination: An employee may file a written complaint with the Texas Workforce Commission, Civil Rights Division. The complaint must be filed within 180 days of the retaliatory action. The commission will investigate your claim and may pursue legal action on your behalf. Alternatively, an employee may file a lawsuit in an appropriate court. An employee who chooses to pursue a lawsuit cannot pursue a claim with the commission. If you believe you have a claim, you should contact the commission or a lawyer immediately.

You can file a complaint in person at 1117 Trinity St., Room 144T, Austin, Texas, between the hours of 8:00 am and 5:00 pm. Also, you can file a complaint by phone at (512) 463-2642 or 1-888-452-4778.

General Public Evacuation: An employee may file a lawsuit in an appropriate court. An employee may be entitled to reinstatement, lost wages, and reinstatement of benefits. If you believe you have a claim, you should contact a lawyer.

Health Care Employees:

  • Hospitals: An employee may file a lawsuit in an appropriate court. An employee may be entitled to recover actual damages (including damages for mental anguish), exemplary damages, and reasonable attorney fees. An employee may also be entitled to reinstatement, compensation for lost wages, and reinstatement of benefits. The lawsuit must be filed within 180 days of the retaliatory action. If you believe you have a claim, you should contact a lawyer immediately. Tex. Health & Safety Code Ann. § 161.134.
  • Intermediate Care Facilities for the Mentally Retarded: An employee may file a lawsuit in an appropriate court. An employee may be entitled to recover actual damages (including damages for mental anguish), exemplary damages (triple the amount of actual damages), damages for lost wages, courts costs, and attorney fees. An employee may also be entitled to reinstatement of position and reinstatement of benefits. The lawsuit must be filed within 90 days of the retaliatory action or, if the employee notifies the Texas Workforce Commission of the retaliation, within 90 days of the employee's notice to the commission. If you believe you have a claim, you should contact a lawyer immediately. Tex. Health & Safety Code Ann. § 252.132.
  • Nursing Homes: An employee may file a lawsuit in an appropriate court. An employee may be entitled to recover actual damages (including damages for mental anguish), exemplary damages (triple the amount of actual damages), damages for lost wages, courts costs, and attorney fees. An employee may also be entitled to reinstatement of position and reinstatement of benefits. The lawsuit must be filed within 90 days of the retaliatory action or, if the employee notifies the Texas Workforce Commission of the retaliation, within 90 days of the employee's notice to the commission. If you believe you have a claim, you should contact a lawyer immediately. Tex. Health & Safety Code Ann. § 242.133.

Nurses: An employee may file a lawsuit in an appropriate court. An employee may be entitled to recover actual damages (including damages for mental anguish), exemplary damages (triple the amount of actual damages), courts costs, and attorney fees. An employee may also be entitled to reinstatement and compensation for lost wages. If you believe you have a claim, you should contact a lawyer immediately. Tex. Health & Safety Code Ann. § 242.133.

Occupational Health and Safety: An employee may file a lawsuit in an appropriate court. The lawsuit must be filed within 90 days of the retaliatory action. An unlawfully discharged employee is entitled to reinstatement, compensation for lost wages, and reinstatement of fringe benefits. If you believe you have a claim, you should contact a lawyer immediately.

Workers' Compensation: An employee may file a lawsuit in an appropriate court. An employee may recover reasonable damages and may be entitled to reinstatement. The lawsuit must be filed within 2 years of the retaliatory action. If you believe you have a claim, you should contact a lawyer.