Know what really counts as whistle-blowing

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in Employment Law,Human Resources

Here’s some good news for em­­ployers: According to a recent Supreme Court of Texas decision, workers who complain to their super­­visors about alleged illegal activities aren’t protected from retaliation under the Texas Whistleblower Act.

That’s true even if the supervisor is responsible for legal compliance.

Recent case: Larry, a professor of surgery at the University of Texas Southwestern Medical Center, was also the chair of the hospital’s Divi­­sion of Burn, Trauma and Criti­­cal Care. Larry went to his supervisor with concerns that trauma residents were training and operating on patients without adequate supervision. He claimed the practices were contrary to Medicare and Medicaid rules and regulations. His supervisor was the medical center staff member re­spon­­sible for legal compliance. Shortly after Larry complained, he was stripped of his faculty chair position.

He sued, alleging retaliation for whistle-blowing under the Texas Whistleblower Act.

The case ended up in the Supreme Court of Texas, which concluded Larry had no case. His complaint was strictly internal and was not made to a law enforcement agency with power to enforce rules and regulations. The case was dismissed. (UTSWMC v. Gentilello, MD, No. 10-0582, Supreme Court of Texas, 2013)

Note: In the wake of this decision, more employees may go directly to law enforcement with their concerns, bypassing their organizations’ internal processes. That may be the only way they can take advantage of the law’s protection from retaliation.

Advice: Set up a system for addressing complaints. Follow up with whistle-blowing employees to make sure they aren’t being punished for reporting alleged wrongdoing. A strong internal process for handling whistle-blowing makes it less likely that employees will take their complaints outside the organization.

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