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Check for good faith if ‘whistle-blower’ sues

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in Human Resources

Public employees who are terminated for reporting a violation of the law can sue under the Texas Whistleblower Act (TWA). Because the law creates a presumption that anyone terminated or otherwise disciplined within 90 days of whistle-blowing was punished for reporting the violation.

That’s why whistle-blowing can look like an attractive safeguard for an employee who is already facing potential discipline.

Fortunately, the employee has to make a good-faith report before TWA protection kicks in. As the following case shows, that can be hard.

Recent case: Hugo Flores was a detective in the Liberty Police Department. He had a stormy relationship with the department, partly because he was having an affair with another employee. Superiors also told him he needed to improve his performance or else face disciplinary action.

Flores then reported to his supervisors that another officer had allegedly killed a cat while working as an animal control officer. This, Flores said, was a violation of the law.

When he was terminated a few weeks later, Flores sued, claiming that he was a protected whistle-blower. He pointed out that his termination occurred within 90 days of his report and that therefore the presumption applied that he was fired for whistle-blowing.

The court dismissed his claims. It pointed out that the whistle-blower law requires the public employee to make a good-faith report. In this case, the department investigated Flores’ claims and found that the cat killing, which did occur, happened when the stray attempted to attack the animal control officer. He killed it in self-defense because he thought it might be rabid.

Because Flores knew those details, the court said he couldn’t have believed that the killing was an illegal act. Therefore, he wasn’t a whistle-blower. (Flores v. City of Liberty, et al., No. 09-09-00532, Court of Appeals of Texas, 9th District, 2010)

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