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.