In Texas, both state and federal law applies to whistleblower claims. Whether you are an employer attempting to reorganize internally, or an employee who has been unfairly retaliated against in response to a whistleblower claim, it is worth considering applicable regulation and how it may lead to a potential lawsuit (and damages).
Here at Berg Plummer Johnson & Raval, LLP, our employment attorneys have decades of experience litigating a variety of claims, including whistleblower actions, for both employees and employers. Through years of representing both sides in whistleblower litigation, we have developed a competitive advantage — we can more easily predict the strategy utilized by opposing counsel and counter it effectively.
Texas has implemented various protections to shield employees from retaliation for their whistleblowing actions, but these protections may be narrowly construed to apply to a limited subset of employees or activities.
Texas Whistleblower Act
The Texas Whistleblower Act protects public employees (state and local) from retaliation for reporting illegal acts. The Act does not apply to private employees. Employees must report to an appropriate law enforcement authority, and must do so within three months of the retaliatory action. Further, all administrative remedies must be exhausted before an employee is entitled to sue and recover in court.
Discrimination and Harassment
Both private and public employees are entitled to protection from retaliation for reporting discrimination and harassment in the workplace.
Whistleblowing on certain violations are deemed critical to public policy, and thus protection is afforded to all employees (public and private). These specific violations include environmental violations, airline regulations, health and safety regulations in the workplace, OSHA violations, and more.
Depending on the circumstances of the termination or retaliation, and the nature of the employment at-issue, federal whistleblower regulation may apply.
Federal Whistleblower Protection Act
The federal Whistleblower Protection Act protects only public employees (federal), like the Texas Whistleblower Act. Like the state version, the federal Act requires that the employee first exhaust their administrative remedies before pursuing further litigation.
False Claims Act
The federal False Claims Act provides whistleblowers protection from retaliation for fraud perpetrated by an employer (i.e., Medicare fraud, selling a defective product knowingly, etc.). Such claims are brought qui tam, which means that the government may step in to litigate the claim.
Securities Law Violations
A number of federal regulations (such as the Sarbanes-Oxley Act, among others) protect whistleblowers who have reported securities law violations and various other financial violations.
Even in the event that a whistleblowing employee is shielded by state and/or federal whistleblowing regulation, to succeed in litigating their claim against the employer, the employee will have to show that there was actual retaliation. Conduct that constitutes retaliation may include, but is not necessarily limited, to:
- Failing to provide benefits
- Failing to give a raise
- Creating a hostile work environment
- Forcing the employee to transition geographically
- And more
Importantly, the purportedly retaliatory conduct of the employer must be linked to the whistleblowing activity. For example, if an employee asserts that the employer has retaliated against them by terminating their employment contract, the employee must prove that the termination is linked to their whistleblowing activities.
The Houston employment attorneys here at Berg Plummer Johnson & Raval, LLP represent both whistleblower employees and businesses in whistleblower litigation. Over the years, as more comprehensive whistleblower regulation develops, the rewards and penalties for whistleblowing and retaliation — respectively — grow larger. As such, it is increasingly important to work with attorneys who have experience litigating whistleblower claims on both sides and who have a long track record of demonstrated success.
Litigation is rarely straightforward, and given the inherent complexity and uncertainty of employment litigation — particularly with regard to claims involving whistleblower activity — the expense of litigation can quickly spiral out of control if you fail to setup a reasonable fee arrangement early on. Our firm offers dynamic fee arrangements that ensures you receive effective representation while remaining squarely within your budget.