Colin Walsh
Texas Employer Lawyer Colin Walsh

The 88th Regular Session of the Texas Legislature convenes on January 10, 2023 and lasts until May 29, 2023.  This coming Monday, November 14, is the first day that legislators can file bills.  I hope that this session, Texas finally fixes the Texas Whistleblower Act to actually provide the protection it promises.  It is a steep order as bills to amend the Whistleblower Act failed to pass during the two prior sessions.  In fact, during the 86th regular session, I even testified in front of a committee as an expert about why the changes to the Act were and are necessary.

So what is the main problem with the Texas Whistleblower Act?  It is too restrictive in terms of what reports qualify as protected activity.  Here is the text of the statute:

Sec. 554.002.  RETALIATION PROHIBITED FOR REPORTING VIOLATION OF LAW.  (a)  A state or local governmental entity may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority.

(b)  In this section, a report is made to an appropriate law enforcement authority if the authority is a part of a state or local governmental entity or of the federal government that the employee in good faith believes is authorized to:

(1)  regulate under or enforce the law alleged to be violated in the report;  or

(2)  investigate or prosecute a violation of criminal law.

    The bolded phrase above is what makes the Texas Whistleblower Act so restrictive and Texas courts have made it even more limited than the words above would seem to suggest.  Most other whistleblower statutes protect reports to an employee’s supervisor, manager, human resources, elected official, head of the agency, or an ethics office.  In most circumstances, reporting violations of law to any of those people will not be protected because they are not an appropriate law enforcement authority.  Moreover, the case law makes clear that it is not enough to report it to an agency that can regulate, enforce, investigate, or prosecute, but that the report has to be made to the actual right division.  For example, an attorney who works for the Attorney General’s Office cannot simply report a violation of law to her supervisor unless that person works in the department that would investigate the particular law that was violated.  

Moreover, agencies often have ethics or compliance offices that it encourages or even directs employees to bring complaints to.  Outrageously, these reports are almost always unprotected.  At best, these reports are ineffective, at worst, the give the whistleblower a false sense of security that allows the agency to fairly openly retaliate against the employee reporting misconduct.

There is an easy fix to this and during the past two sessions, common sense amendments have been proposed to the whistleblower act expanding the types of protected reports.  Here are the amendments that were proposed in 2021 by Representative Israel:

(a) A state or local governmental entity may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to:

(1) the reporting employee’s immediate supervisor, or an individual who holds a position above the reporting employee’s immediate supervisor, at the employing governmental entity;

(2) an individual or office designated by the employing governmental entity as the individual or office for reporting such grievances;

(3) a member of the human resources staff of the employing governmental entity; or

(4) an appropriate law enforcement authority

The above amendments would greatly improve the Whistleblower Act and provide the protection the Whistleblower Act promises.  I hope this next session, we finally get this done.

I know I just railed against the Whistleblower Act, but if you believe you have been retaliated against for reporting a violation of law to an appropriate law enforcement authority, then you should contact an employment attorney to discuss what rights and remedies you have.  My firm handles these types of cases all of the time.  You can book a consult at our website www.wileywalsh.com or by calling 512-271-5527. 

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Photo of Colin W. Walsh Colin W. Walsh

We asked Colin W. Walsh, an experienced Trial Attorney in the Austin office of Wiley Walsh, P.C., to impart his candid answers to a range of questions.   After reading, you will be more more informed on the well-respected reputation that Mr. Walsh

We asked Colin W. Walsh, an experienced Trial Attorney in the Austin office of Wiley Walsh, P.C., to impart his candid answers to a range of questions.   After reading, you will be more more informed on the well-respected reputation that Mr. Walsh carries.

1. What do you like most about being an employment lawyer?

I enjoy getting tangible results for my clients and being involved in an area of law that affects everybody every day.

2. What is the most important issue to you of being an advocate?

One of the most important issues to me as an advocate is to not only zealously represent my clients, but also the law.

3. What kind of clients do you like best?

I like the clients that I am able to help who were not able to find help elsewhere.  On a couple of occasions now, a client has told me that my firm is the first one that has listened to his or her issue and offered any kind of assistance.

4. What do you think is the most important part of a good case?

The client.  If the client is not invested, then the other side won’t take it seriously and neither will the jury.

5. What labor and employment issues do you think are currently trending?

The biggest employment discrimination issues I see right now are related to age, disability, and pregnancy discrimination.  For some reason, these types of discrimination seem to be acceptable to employers.  The other issues right now are minimum wage and overtime pay.

6. Who is your favorite Supreme Court Justice?

Justice William Brennan.

7. What would you say to HR of a company about how to treat employees?

It would be to listen to your employees.  Most employees are not looking to sue when he or she goes to Human Resources.  These employees are sincerely looking for help.  Nothing makes an employee seek legal counsel like when he or she complains about something and HR starts investigating the employee instead of the complaint.

8. Besides Rob Wiley, P.C., what is the most interesting job that you have had?

The most interesting job I’ve had is working as an extra in film and television.  I should have known that I was destined to be a lawyer at that point because two of my biggest gigs were the TV show “Boston Legal” and the film Charlie Wilson’s War.

9. What is your favorite food?

Meat pies.  I first discovered them when I studied abroad in undergrad.  I can’t believe these have not caught on in the U.S. because they are brilliant.

10. What’s the best part of living in Austin?

All of the outdoor festivals.  And the Longhorns.

Colin W. Walsh is a Trial Attorney in the Austin office of Wiley Walsh, P.C.  He graduated from The University of Texas at Austin with a bachelor’s degree in theatre in 2006.  Mr. Walsh then graduated from The University of Texas School of Law with honors in 2011.