On September 5, 2018, board-certified employment attorney Kerry O’Brien participated as the “employee lawyer’s perspective” for the “Who is the client?” presentation to the Austin Bar Association Labor & Employment Section. The panel discussion with Kerry and three employer-side attorneys discussed the ethical considerations involved in determining when someone is, and is not, a “client.” […]Read More
“I was fired because I’m a whistleblower.”
Well, like a lot of things in the law, it depends. There are many things that are “whistleblowing” at your job that don’t protect you from getting demoted or fired in retaliation in Texas. At the same time, there are a long list of *particular* activities, or particular jobs (sometimes depending upon where you work) that are protected when you engage in whistleblowing activities.
State and Local Government Employees –
The Texas Whistleblower Act
The Texas Whistleblower Act is our state’s “general” whistleblowing law. However, it covers whistleblowing by state and local government employees only. If you work at a private company, you are not covered by this law. The only exception can be if your “company” is so involved in state government that it could be deemed essentially a government agency. Those exceptions are few and far between. Mostly likely, if you work for a company, you aren’t covered by this particular law. However, depending on the type of business you work in, or your occupation (for example, nurses), you may be covered by special whistleblowing laws that have been passed for the public interest. Those are discussed a bit farther down.
But for government employees, the Texas Whistleblower Act protects you in your job from retaliation for reporting, in good faith:
1. An illegal act (a violation of federal or state law, an ordinance or an administrative rule (passed under a state law or ordinance));
2. By another state or local government employee;
3. To an appropriate law enforcement authority.
That’s the extent of your whistleblowing protection under this law as a state or local government employee. There have been many court cases defining when a whistleblower is or isn’t protected by the Texas Whistleblower Act. The biggest issue has been defining when the report was to an “appropriate law enforcement authority.” Just reporting the violation of law to a supervisor isn’t enough – unless perhaps if the supervisor is part of an appropriate law enforcement authority, generally one that is charged with investigating these types of violations of law. Texas courts are generally strict with ensuring that your report of illegal activities falls within the specific words of this law and that you have met the deadlines in the law for taking action on the retaliation.
In fact, the time frame for taking action under the Texas Whistleblower Act is short – usually 90 days from the date the employer took negative action against you, or even 90 days from the date you should have known that the employer took a negative job action against you. But there are also provisions that require that you invoke your agency’s grievance process that affect the 90-day deadline. Talk to a board-certified employee rights attorney ASAP if you believe you may have been retaliated against as a state or local government employee whistleblower. That retaliation can be anywhere from a meaningfully worse reassignment to a full termination.
Retaliation for Reporting Anti-Discrimination and Anti-Harassment Employment Laws
When you report to a supervisor or other authority within your company that you or another employee is being harassed or discriminated against based on race, religion, national origin, sex, disability or another characteristic or factor protected by law, or that you and/or your co-workers aren’t being paid legally under the overtime or minimum wage laws, you may be protected from job retaliation in response to your report of these issues. Employment lawyers think of this as the “anti-retaliation law,” which it is, but what you’ve done is essentially a form of internal whistleblowing. You are also protected when you file a charge of discrimination with the Equal Employment Opportunity Commission for discrimination (or the Texas Workforce Commission Civil Rights Division here in Texas). And, in fact, retaliation complaints for reporting discrimination based on race, religion, sex, etc. must also go through the EEOC first before you can sue the employer. The O’Brien Law Firm regularly works with the EEOC offices in San Antonio (covering Austin as well), Houston and Dallas to get these complaints investigated and get the case prepared for the eventual lawsuit in court when the EEOC’s investigation is complete.
Special Whistleblowing Laws
Some Texas whistleblowing employees are covered by special, specific laws that are related to where they work or what their occupation is. The rationale behind these laws is that protecting certain reports of illegal activities or conditions in certain facilities is very much in the public’s best interests. In addition, sometimes the only way for authorities to know that the law is being violated is through a report by a conscientious insider. Protection from job retaliation may be triggered (again, depending upon the specific facts) from reporting:
Discrimination and Harassment
- Violations of law in hospitals, mental health treatment facilities, long-term care nursing facilities and certain other types health-related facilties
- Violations of law by nurses and doctors to their respective licensing board.
- OSHA violations (contact OSHA directly)
- Violations of commercial motor vehicle safety regulations
- Hazards from asbestos
- Violations of federal environmental regulations
- Improper handling of toxic substances
- Violations of federal energy laws
- Violations of the Atomic Energy Act
- Reporting violations of airline regulations
- Reporting unsafe pipeline operations
- Reporting a violation of worksite health or safety regulations using the Division of Workers’ Compensation’s toll-free hotline number
Additional Federal Laws Protecting Whistleblowers
- The Whistleblower Protection Act of 1989, which protects federal government whistleblowers.
- The Sarbanes-Oxley Act of 2002, which protects whistleblowers who report accounting irregularities or securities law violations at publicly traded companies.
- The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, which protects whistleblowers who report securities law violations, commodities trading violations, and other financial misconduct – either at a publicly traded or privately held company.
- The False Claims Act protects whistleblowers who report fraud by federal contractors.
There are also a number of anti-retaliation laws in Texas that protect employees in certain situations that aren’t specifically instances of whistleblowing.
Contact Us ASAP
The O’Brien Law Firm wants to talk to you, find out more about your situation and see if we can help get you compensated and hold the employer accountable. There are different ways to make contact with our firm, and you can choose the one you’re most comfortable with:
1. Email us.
2. Call us at (844) 627-4364 (844-OBRIEN4) and ask to set up a free phone consultation with Kerry O’Brien.
3. Set up a free 15-minute phone consultation through our firm’s online scheduling system.
4. Text obrien to 77948 from your personal cell phone to get a link to our online scheduling system to schedule a 15-minute phone consultation.
5. Just fill out the form below:
Just keep in mind that many of these whistleblowing laws have relatively short “statutes of limitations” – the legal time period in which you have a right to take legal action against the employer. So contact our firm or another board-certified employment attorney ASAP if you believe your rights may have been violated. Most of these statutes provide for money recovery and other remedies to compensate you for the retaliation and hold the employer accountable.
On June 21, 2018, the O’Brien Law Firm sued Compass Datacenters, LLC on behalf of the firm’s client, a former sales director who, as the lawsuit alleges, was denied $200,000 in earned commissions from his work on the Tierpoint Tulsa Datacenter lease and a project for American Electric Power. In June 2017, Compass Datacenters’s CEO, Chris […]Read More