Employees are often quite sophisticated about their legal rights—especially when they suspect their jobs may be on the chopping block. When they think of the lawsuit possibilities, they may even try to set up their employers. One easy way
to get a case going is to blow the whistle on alleged wrongdoing.
Here’s why it just might work: The Texas Whistleblower Act includes a very interesting provision. It states that when an employee is fired within 90 days of a whistle-blowing act (such as reporting alleged wrongdoing to a state or federal agency), it’s up to the employer to prove it had a legitimate reason for the discharge.
In other words, the court will presume it is retaliation to fire a whistle-blower within 90 days of making an allegation.
It doesn’t take too much imagination to see that an employee in trouble at work might want to report “wrongdoing” to an agency in order to create a presumption he was fired in retaliation for the complaint.
Advice: Always document discharge reasons, at least internally, even if you are terminating an at -will employee. That gives you some way to overcome the retaliation presumption if the employee blows the whistle before the discharge.
Recent case: Anthony Faulkner worked as a security officer at a state hospital for 18 months before he was fired.
Shortly before his discharge, Faulkner reported to the U.S. Department of Health and Human Services what he suspected were medical privacy violations. He claimed left intake and discharge logs in a public place, accessible by those with no right to the information. A few days later, he was fired.
He sued, alleging retaliation for blowing the whistle on the hospital’s alleged privacy violations.
The hospital first argued that what Faulkner reported didn’t violate federal law. Therefore, it reasoned, Faulkner wasn’t a whistle-blower. The court rejected that reasoning, writing that the Texas Whistleblower Act requires that the whistle-blower only reasonably believes he is reporting wrongdoing. There was no need for the court to decide whether leaving admission and discharge logs in a public place violated federal patient privacy rights.
The court then looked at the discharge timing and said the firing was presumed to be related to the whistle-blowing since it occurred so soon after. It said the hospital had to show a legitimate reason for firing Faulkner unrelated to the complaint.
Fortunately, the agency had such a reason. It said there had been several occasions on which Faulkner failed to report to the proper authority patient abuse or neglect, something he was required to do by law. The court dismissed Faulkner’s case. (Faulkner v. Department of State Health Services, No. 3:07-cv-2074, ND TX, 2009)
Final note: You simply never know what a discharged employee will claim. In this tough economy, many employees will probably head straight to an attorney. And that attorney will immediately consider every possible claim—some that the employee likely never even thought of. That can include whistle-blowing, unpaid overtime and every form of discrimination. Be prepared with a solid discharge reason.
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