A retaliation claim is similar to, but different from, a discrimination claim. The discrimination statutes protect various employees with various characteristics, from race to sex to disability status to immigration status. The discrimination statutes also protect people who engage in certain activities, from claiming family or medical leave to serving on a jury to joining a union.
While there is some overlap, the retaliation laws are based on certain specific types of legally protected activity. This article lists the various retaliation laws that protect Texas employees.
1. The Employment Discrimination Statutes
Most if not all of the basic employment discrimination statutes -- from Title VII to the Americans with Disabilities Act to the Family and Medical Leave Act -- prohibit retaliation for the exercise of rights under the statutes, for complaining about violations of the statute, for acting as a witness in a proceeding under the statute, and for similar activities. A list of these statutes can be found here.
2. The Fair Labor Standards Act
The FLSA prohibits retaliation in connection with minimum wage and overtime claims, complaints, and investigations.
3. Federal Whistleblower Statutes
There are many federal whistleblower statutes. Note that a prerequisite to most if not all whistleblower laws is that the employee make a report to an appropriate authority, which in some cases is a law enforcement agency or a regulatory agency. Internal company complaints do not always qualify for whistleblower protection. However, if the whistleblower meets the requirements of the various statutes, the company may not retaliate.
The major federal whistleblower protection statutes are the following:
- The Whistleblower Protection Act of 1989: Federal government whistleblowers.
- The Sarbanes-Oxley Act of 2002: Whistleblowers who report accounting irregularities or securities law violations at publicly traded companies.
- The Dodd-Frank Wall Street Reform and Consumer Protection Act: Whistleblowers who report securities law violations, commodities trading violations, and other financial misconduct.
- The False Claims Act: Whistleblowers who report fraud by federal contractors.
There are also a host of lesser known whistleblower protection provisions tucked away inside various federal regulatory schemes. These include:
- Reporting OSHA violations
- Reporting commercial motor vehicle safety regulations
- Reporting asbestos hazards
- Reporting unsafe shipping containers
- Reporting violations of federal water and air pollution laws
- Reporting the mishandling of toxic substances
- Reporting violations of federal energy laws or Department of Energy procedures
- Reporting violations of the Atomic Energy Act
- Reporting violations of airline regulations
- Reporting unsafe pipeline operations
All of these provisions have specific requirements. Any prospective whistleblower should consult an employment lawyer to be sure that the whistleblower provision is applicable to the specific circumstances.
4. The Sabine Pilot Rule
In the Sabine Pilot case, the Texas Supreme Court held that an employee has a common law claim against an employer if the employer fires the employee for the sole reason that the employee refused to commit an illegal act. The courts have construed this rule quite narrowly.
5. The Texas Whistleblower Act
The Texas Whistleblower Act protects state and local employees. This is a narrow statute that has many restrictions. For example, the Texas Supreme Court recently held that the Act is not triggered by complaints to a supervisor.
6. Specific State Protections
Texas law also protects a number of specific types of employees. These include:
- An employee who takes time off to vote or to attend a political convention
- An employee who refuses to vote in a certain way
- An employee who reports a violation of the Hazard Communication Act (which involves notice of hazardous chemicals used in plants) or exercises rights under the Act
- An employee who reports a violation of the Agricultural Hazard Communication Act (which involves notice of hazardous chemicals used in agriculture) or exercises rights under the Act
- An employee who uses the Divison of Workers Compensation's toll-free telephone number to report the violation of an occupational health or safety law
- An employee who is a party to a labor arbitration under state law
- An employee who is blacklisted
- An employee who refuses to deal with or buy goods from a third party designated by the employee
- An employee who refuses to take an AIDS test unless the test is required by law or is a bona fide occupational requirement
- Nursing home employees who report violations of law
- An employee of a hospital, nursing home, or treatment facility who reports a violation of law
- A physician who reports another physican to the State Board of Medical Examiners
- A registered nurse who reports incidents of poor nursing to the Texas Board of Nursing, or a person who advises a nurse of the right to make such a report
- A health care employee who refuses to participate in an abortion
- A health care employee who participates in an abortion at a different facility from that of the employer
- An employee of a county with over 3.3 million residents (which is only Harris County), other than an employee of the Sheriff's Department, who participates in the county grievance process
- An employee who leaves work due to an emergency evacuation order
These statutes do not always provide a private cause of action. Several of these provisions are criminal statutes. In other words, the employer could be prosecuted for retaliation, but there is no express civil liability provision.
David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes