Employees who learn that their employer is engaging in unethical or illegal activity face a tough choice: blow the whistle or remain silent. Both options carry risks. On the one hand, an employee who is aware of their employer’s unlawful activity and chooses to remain silent risks being held responsible for any harm it may cause down the road. On the other hand, an employee who decides to blow the whistle on their employer risks retaliation if their anonymity is compromised. Whistleblowers play a key role in keeping our society safe and secure from corporate wrongdoing. Not surprisingly, there are many laws in place that provide remedies to victims of whistleblower retaliation.
Examples of Retaliatory Actions
The following are examples of retaliatory conduct that may serve as the basis for a whistleblower retaliation claim against your employer:
- reduction in pay;
- loss or reduction of benefits;
- divesting of significant responsibilities;
- failure to promote;
- discontinuation of stipends;
- denial of a pay increase;
- reassignment to menial or degrading work; and
- severe or pervasive insults, ridicule, threats, intimidation, or humiliation intended to encourage the whistleblower to resign.
This is not a comprehensive list of the types of conduct that may qualify as retaliatory conduct. There are many other ways in which an employer can retaliate against an employee for blowing the whistle.
Texas Whistleblower Act
At the state level, the Texas Whistleblower Act prohibits state or local government entities from taking adverse personnel action against a public employee who in good faith reports a violation of law by the employing governmental entity to an appropriate law enforcement authority. The Texas legislature passed the Texas Whistleblower Act to protect employees who blow the whistle on wrongdoings within state and local governmental entities from retaliation. Unlike certain federal laws that protect corporate whistleblowers, the Texas Whistleblower Act does not protect whistleblowers who work for private companies. Rather, the Texas Whistleblower Act only protects employees who work for state and local governmental entities.
To establish a claim for whistleblower retaliation under the Texas Whistleblower Act, a plaintiff must show that:
- they are a “public employee”;
- they acted in good faith in making a report;
- their report involved a violation of law by the agency or a public employee;
- their report was made to an appropriate law enforcement authority;
- the employing governmental entity took an adverse employment action against the employee because of the report.
The Texas Whistleblower Act Only Protects “Public Employees”
A person is a “public employee” if they are an employee (rather than an independent contractor) or appointed officer who is paid to perform services for a state or local entity. Examples of public employees include public school teachers and administrators, professors at state universities and colleges, police officers, street sweepers, and all of the other employees working for state and local governmental agencies throughout Texas.
The “Good Faith” Requirement
A whistleblower “acted in good faith” if they honestly believed their employer’s conduct was illegal and their belief was reasonable given their training and experience. For example, a police officer’s belief that his fellow officer broke the law when he killed an animal was unreasonable given his training and experience. Flores v. City of Liberty, 318 S.W.3d 551, 559 (Tex. App.—Beaumont 2010, no pet.). Importantly, the law protects employees even if they are mistaken in their belief that their employer’s actions violated the law.
Identifying Which Law Was Violated
The vast majority of employees in Texas do not have a legal education. Yet most people know the difference between right and wrong. If your employer is doing something that could cause others unforeseeable harm, there’s a good chance it’s illegal. Recognizing this reality, the Texas Whistleblower Act protects whistleblowers from retaliation regardless of whether they were able to identify the specific law that their employer broke when they reported the employer’s wrongful actions.
Identifying the “Appropriate Law Enforcement Authority”
That said, if you are considering blowing the whistle on wrongful actions taken by your employer, there are several advantages to identifying the specific law(s) that your employer violated before making your report. First, the Texas Whistleblower Act only protects whistleblowers who reported the wrongful actions to the “appropriate law enforcement agency.” The “appropriate” law enforcement agency will depend on the specific laws that were broken.
The following are examples of cases in which a court dismissed a whistleblower retaliation claim because the plaintiff did not make their report to the “appropriate law enforcement agency”:
- University of Texas Southwestern Medical Center at Dallas v. Gentilello, 398 S.W.3d 680 (Tex. 2013) (finding that a college professor who reported alleged Medicare/Medicaid violations internally to his department chair did not report the violations to the “appropriate law enforcement agency” because “only the United States Secretary of Health and Human Services (HHS Secretary) can ‘regulate under’ or ‘enforce’ Medicare/Medicaid rules”).
- Connally v. Dallas Independent School District, 506 S.W.3d 767 (Tex. App.—El Paso 2016, no pet.) (finding that a teacher who reported another employee’s alleged criminal wrongdoing to an internal task force created by Dallas ISD to investigate fraud had not reported the wrongdoing to the “appropriate law enforcement agency” because the task force and school district “had no power to take any action against the employee for [the] alleged crimes, other than to recommend internal discipline of the employee or to recommend referring the matter to law enforcement for prosecution”).
- University of Houston v. Barth, 403 S.W.3d 851 (Tex. 2013) (holding that, given the plaintiff’s legal training and experience as a university professor and practicing attorney, he could not have reasonably believed in good faith that the university’s CFO, general counsel, internal auditor, or associate provost had the authority to investigate or prosecute his allegation that a college dean was allegedly mishandling funds).
- Canutillo Independent School District v. Farran, 409 S.W.3d 653 (Tex. 2013) (finding that a public employee who reported employee theft and falsification of time cards to the school board, superintendents, and an internal auditor had not reported the misconduct to an “appropriate law enforcement agency” because those officials lacked the authority “to enforce the allegedly violated laws outside of the [school district] itself, against third parties generally”).
Examples of “appropriate law enforcement agencies” for reporting potential criminal violations to include the local police department, sheriff’s department, or in some cases, the FBI.
Second, to establish a whistleblower retaliation claim in a subsequent lawsuit under the Texas Whistleblower Act, a plaintiff must identify the specific law(s) that prohibited the activity they previously reported.
Finally, the decision to blow the whistle on an employer is one that should not be made lightly. An employee’s confirmation that their employer’s actions are in fact illegal and ability to cite the specific laws that were broken may help them correctly weigh the risk of blowing the whistle against the risk of remaining silent.
An experienced employment lawyer can help you determine whether your employer’s actions violated the law, which laws were violated, and the law enforcement agency to which the whistleblower report must be made.
Reporting the Violation of Law
The Texas Whistleblower Act generally protects public employees who report employers’ illegal activity to the appropriate law enforcement agency. For purposes of the Act, a “report” includes an employee’s disclosure of information that suggests that their employer violated a criminal or civil law, statute, administrative rule, or regulation. There are no magic words or specific phrasing that an employee must use when making a whistleblower report. The report may be made verbally or in writing in most cases. The employee need not specify the law that was violated at the time he or she makes the report, although doing so may be advantageous for the reasons discussed above. An employee also does not have to affirmatively state that their employer’s conduct is in fact a violation of the law. So, for example, a “report” may include a situation in which an employee asked the appropriate law enforcement agency whether her employer’s actions violated the law.
What is an “Adverse Personnel Action” Under the Texas Whistleblower Act?
According to the Texas Whistleblower Act, an “adverse personnel action” means an action that negatively affects a whistleblower’s compensation, promotion, demotion, transfer, work assignment, or performance evaluation.
Connecting the Whistleblower Report to the Adverse Personnel Action
To establish a retaliation claim under the Texas Whistleblower Act, a plaintiff must prove that their employee took adverse personnel action against them because of their whistleblower report and not some other unrelated reason. If the adverse action occurred within 90 days of the employee’s whistleblower report, a “rebuttable presumption” arises that the employer’s action was in fact taken because the employee blew the whistle.
An employer is never going to admit to taking an adverse personnel action against one of its employees because they blew the whistle. Instead, employers will come up with some other reason unrelated to the whistleblower report to justify its action against the whistleblower. Therefore, a whistleblower who is subjected to retaliation should gather evidence showing that their employer:
- knew about the whistleblower report;
- expressed hostility or a bad attitude about the report;
- did not follow the normal policies, procedures, or practices in taking the adverse personnel action against the whistleblower;
- treated the whistleblower less favorably than other similarly situated employees after learning about the whistleblower report; and
- that their employer’s stated reason for taking the adverse personnel action against the whistleblower is false.
Prerequisites to Filing a Lawsuit and Limitations Period
Before a plaintiff may bring a claim for retaliation under the Texas Whistleblower Act, they must “initiate” action under their employer’s grievance or appeal procedures regarding the adverse personnel action taken against them. The legislature created this prerequisite to afford employers the opportunity to remedy the harm caused by the retaliatory actions without the need for a lawsuit.
The whistleblower must invoke their employer’s grievance or appeal procedures not later than the 90th day after the date on which (1) their employer took the retaliatory action against them or (2) they discovered the retaliation “through reasonable diligence.” A whistleblower who fails to invoke the applicable grievance or appeal process within the 90-day window of time may permanently lose their right to assert their whistleblower retaliation claim in a court of law.
Many public employers in Texas, such as independent school districts, have written policies and procedures that contain instructions on how to initiate the grievance process. For example, the Dallas Independent School District’s employee complaints and grievances procedures are published online within the School Board’s Policy Manual here. If an employer has a written procedure that clearly states how to initiate its grievance or appeal procedure, the employee must carefully follow those instructions. In such cases, merely asking the employer to reconsider its personnel decision will not “invoke” the grievance procedures.
Unlike independent school districts, some public employers in Texas do not have clear written procedures that explain how to initiate a grievance or appeal related to an adverse employment decision. Despite this fact, a whistleblower who has suffered retaliation must still provide their employer with adequate notice of their whistleblower retaliation claim before they may file a lawsuit under the Texas Whistleblower Act. To provide an employer with adequate notice in such cases, the whistleblower should provide written notice to the appropriate person within their employer’s organization that:
- identifies the specific retaliatory actions taken against them;
- provides the date of each retaliatory action;
- explains that they believe their employer took said actions against them because of their whistleblower report;
- expresses their desire to appeal or challenge the employer’s adverse personnel actions taken against them;
- expresses their desire to invoke the employer’s grievance or appeal procedures; and
- asks what additional steps they must take to pursue their appeal or grievance.
The “appropriate person” to whom the notice may be given may vary depending on the laws governing the public employer in question. An experienced employment attorney may be able to help you with this.
If the employer has not decided the grievance or appeal within 60 days after the date on which the whistleblower initiated said grievance/appeal, the whistleblower may do one of two things:
- The whistleblower may exhaust the employer’s grievance or appeal process until the employer renders a final decision, at which point the whistleblower must then assert their retaliation claim in a lawsuit within 30 days.
- Alternatively, the employee may simply terminate the grievance or appeal process and file a lawsuit against the employer. Whistleblowers who choose the second option must file their lawsuit no later than the 90th day after the date on which their employer took the retaliatory action against them or the date on which they discovered the retaliation through reasonable diligence. If the employer issues a final decision on the whistleblower’s grievance or appeal within 60 days of the date on which the grievance/appeal procedures were initiated, the whistleblower must file their lawsuit not later than the 90th day after the date on which their employer took the retaliatory action against them or the date on which they discovered the retaliation through reasonable diligence.
Remedies Available Under the Texas Whistleblower Act
Whistleblowers who prevail on a claim for whistleblower retaliation under the Texas Whistleblower Act may obtain:
- injunctive relief;
- actual damages;
- past lost wages;
- damages for lost promotions;
- damages for lost merit-pay increases;
- future lost wages and benefits;
- reasonable attorney’s fees;
- court costs;
- reinstatement; and
- reinstatement of fringe benefits and seniority rights lost.
Whistleblowers may also recover “compensatory damages” for:
- future pecuniary losses;
- emotional pain and physical suffering;
- mental anguish;
- loss of enjoyment of life; and
- other nonpecuniary losses.
The Texas Whistleblower Act places the following caps on the total amount of compensatory damages that a prevailing plaintiff may recover:
- $50,000, if the employer has 100 or fewer employees;
- $100,000, if the employer has between 101 and 200 employees;
- $200,000, if the employer has between 201 and 500 employees; and
- $250,000, if the employer has 501 or more employees.
Finally, a prevailing plaintiff who proves “malice” may recover “exemplary damages.” An employment lawyer can help you determine whether and to what extent you may recover the remedies available under the Texas Whistleblower Act.
Whistleblower Protections Under Federal Law
At the federal level, there are a wide variety of laws that protect whistleblowers working in both the public and private sectors from retaliation. The following is a list of various federal statutes that contain whistleblower provisions:
- Affordable Care Act (ACA)
- Asbestos Hazard Emergency Response Act (AHERA),
- Clean Air Act (CAA)
- Commercial Motor Vehicle Safety Act (CMVSA)
- Comprehensive Environmental Response Compensation and Liability Act (CERCLA)
- Consumer Financial Protection Act (CFPA)
- Consumer Product Safety Improvement Act (CPSIA)
- Department of Defense Authorization Act (DDAA)
- Employee Retirement Income Security Act (ERISA)
- Energy Reorganization Act (ERA)
- Fair Labor Standards Act (FLSA)
- False Claims Act (FCA)
- FDA Food Safety Modernization Act (FSMA)
- Federal Mine Safety and Health Act (Mine Act)
- Federal Rail Safety Act (FRSA)
- Federal Water Pollution Control Act of 1972 (FWPCA)
- International Safe Container Act (ISCA)
- Longshore and Harbor Workers’ Compensation Act (LHWCA)
- Migrant and Seasonal Agricultural Worker Protection Act (MSAWPA)
- Moving Ahead for Progress in the 21st Century Act (MAP-21)
- National Defense Authorization Act (NDAA)
- National Transit Systems Security Act (NTSSA)
- Occupational Safety and Health Act of 1970 (OSHA)
- Pipeline Safety Improvement Act (PSIA)
- Safe Drinking Water Act (SDWA)
- Sarbanes-Oxley Act of 2002 (SOX), as amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank Act)
- Seaman’s Protection Act (SPA)
- Solid Waste Disposal Act (SWDA)
- Surface Mining Control and Reclamation Act (SMCRA)
- Surface Transportation Assistance Act (STAA)
- Taxpayer First Act
- Toxic Substances Control Act (TSCA)
- Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21)
- Whistleblower Protection Act (WPA)
The list above is not intended to be a comprehensive list of all federal statutes that contain provisions protecting whistleblowers. If you have are a victim of whistleblower retaliation, you should consult with an employment lawyer about your specific situation.
Working with a Whistleblower Retaliation Lawyer
If you believe that you may have a whistleblower retaliation claim, there are a number of things you can do to protect your rights and improve your chances of a successful outcome:
- Document everything. Keep detailed notes about the events that transpire at work. Each time you are subjected to negative, hostile, retaliatory, or offensive statements or conduct at work, write down the date, time, location, a detailed description of what happened, the names of those involved, the names of any witnesses who were present when it happened, and exactly what was said or done.
- Keep copies or take screenshots of any relevant emails, texts, photos, videos, or social-media posts. Make sure that you do not violate any laws in doing this.
- Tell a trusted friend, family member, or coworker what happened and write down the details of those conversations. They can not only provide you with much needed support, they may also provide corroborating statements if you need them later on.
- Keep notes and documents related to your job productivity, performance, and all harms and losses that you have suffered. If possible, review and/or obtain copies of your performance reviews and personnel file. Having your own copies of these documents is important because you and your attorney may need to use them as evidence should your employer try to justify its actions against you on poor job performance or some other incident unrelated to your whistleblower report. Moreover, having your own copies of these records will prevent attempts by your employer later on to cover its tracks by, for example, adding records to your personnel file after-the-fact, altering your employment records, or “losing” key documents that might support your claim.
- Store all documents, notes, and evidence outside your office. Make sure to keep any electronic notes, documents, photos, or videos on a personal computer or phone, not a work computer/phone. Avoid using employer-provided computers or mobile devices to make your whistleblower report. Assume that your employer monitors all communications to and from your employer-issued devices and work email account.
In addition to taking the actions described above, hiring a knowledgeable and experienced employment lawyer may help you achieve the best outcome possible in your case. An employment lawyer may advise you on your rights as a whistleblower, ensure that your whistleblower report is made to the appropriate authority, ensure that your filing deadlines are met, assist you in complying with any administrative prerequisites to filing a lawsuit, investigate and collect the evidence that you will later need to prove your whistleblower retaliation claim, and represent you in a lawsuit.
Because of the complicated administrative process, short filing deadlines, and complex web of whistleblower laws that might apply to your case, victims of whistleblower retaliation in the workplace should contact the Wagoner Law Firm without delay for a free case evaluation.