Texas Whistleblower Act

Texas Whistleblower Act

Oftentimes, public employees are hesitant to report behavior or occurrences of the public employing entity to an appropriate law enforcement authorities. Fortunately, the Texas Whistleblower Act was implemented in order to protect individuals who report such behavior or occurrences. What is the Texas Whistleblower Act? Let’s discuss.

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What is the Texas Whistleblower Act?

The Texas Whistleblower Act strictly prohibits a city from taking an unfavorable action against an employee who reports a violation of a law by the employing city or another public employee to an appropriate law enforcement authority.

Chapter 554 of the Texas Government Code, outlines the Texas Whistleblower Act. The Act states,

(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.

In sum, the Act protects and supplies remedies to employees who acted with good faith while report the violation. The employee must have had a good faith belief to report the violation; additionally the good faith belief must be reasonable.

The statute itself is vague as to what constitutes an appropriate law enforcement authority. Legal precedent set by Texas case law defines an appropriate law enforcement authority as an agency that has the authority to regulate under, investigate, enforce and prosecute a violation of the employment retaliation laws.

Who is Protected under the Whistleblower Act?

The Act provides protection for the following employees,

(a)  A public employee whose employment is suspended or terminated or who is subjected to an adverse personnel action in violation of Section 554.002 is entitled to sue for:

  1. injunctive relief;
  2. actual damages;
  3. court costs;  and
  4. reasonable attorney fees.

It is important to note that under this subsection of the Act, in order to be eligible for relief, the public employee must have actually been suspended, terminated, or who is subjected to adverse personnel action.

What Remedies are Available under the Whistleblower Act?

In addition to injunctive relief, actual damages, court costs, and reasonable attorney fees, a public employee may also recover the following under the Act:

(b)  In addition to relief under Subsection (a), a public employee whose employment is suspended or terminated in violation of this chapter is entitled to:

  1. reinstatement to the employee’s former position or an equivalent position;
  2. compensation for wages lost during the period of suspension or termination;  and
  3. reinstatement of fringe benefits and seniority rights lost because of the suspension or termination.

What Notice is Required under the Whistleblower Act?

The Whistleblower Act requires that certain notice requirements be met; Section 554.009 of the Act states,

(a)  A state or local governmental entity shall inform its employees of their rights under this chapter by posting a sign in a prominent location in the workplace.

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Family Medical Leave Act Texas – FMLA

Family Medical Leave Act Texas – FMLA

In the course of life, unfortunate situations may arise in which one must be absent from work for a prolonged period of time. Oftentimes, that unfortunate situation maybe one’s illness or the illness of a family member. Fortunately, the Family Medical Leave Act may lend protection to those who need to take a leave from work for medical purposes.

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What is the Family Medical Leave Act?

The Family Medical Leave Act is a federal law that is designed to protect eligible employees to taking an unpaid leave from work for the reasons outlined in the Act. It is important to note that Texas does not have its own family and medical leave law, but instead falls under the umbrella of the federal statute.

Who is Protected by the Family Medical Leave Act?

The Family Medical Leave Act does not apply to all illnesses and circumstances.

The Act states,

(a) In general

(1) Entitlement to leave Subject to section 2613 of this title, an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following:

(A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.

(B) Because of the placement of a son or daughter with the employee for adoption or foster care.

(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.

(D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.

(E) Because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces.

In short, employees are eligible for a total of 12 workweeks within one year of: the birth of a child; the adoption of a child; to care for a spouse, son, daughter, parent or oneself because of a serious health conditions; or care for a family member who was wounded in the armed forces.

Texas Payday Law

Texas Payday Law

In the normal course of any business, employers hire individuals to perform a task or service. In turn, the employees expect to compensated for that service. For the purposes of this article, an independent contractor or anyone who has is close family relative of the employer, is not considered an employee. The Texas Payday Law is applicable to all employees regardless of the size of the employer’s organization. What is the Texas Payday Law? Let’s discuss.

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What is the Texas Payday Law?

Chapter 61 of the Texas Labor Code, which outlines the Texas Payday Law, is purposefully designed to deter employers from withholding payment to their employees.

Section 61.011 of the Law states,

(a) An employer shall pay wages to each employee who is exempt from the overtime pay provisions of the Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.) at least once a month.
(b) An employer shall pay wages to an employee other than an employee covered by Subsection (a) at least twice a month.
(c) If wages are paid twice a month, each pay period must consist as nearly as possible of an equal number of days.

This subsection ensures that employees are to be paid in a timely matter. Depending on how employees are characterized as per the law, payment may be received at least once a month or at least twice a month; if payment is received twice a month, there should be an equal number of days between the two days of payment.

What is Considered Proper Payment under the Texas Payday Law?

Under the Texas Payday Law, compensation could be rendered through payment of regular compensation for the services provided by the employee; bonuses and commissions; and fringe benefits depending on the employer.

Payment to the employee may be delivered in a check, cash, or electronic wiring of funds directly to the employee’s designated bank account. It is important to note that all other forms of payment might not be covered under the Texas Payday Law and may be challenged.

What Happens to an Employee’s Payment if the Employment is Terminated?

Under Section 61.014 of the Texas Payday Law,

(a) An employer shall pay in full an employee who is discharged from employment not later than the sixth day after the date the employee is discharged.
(b) An employer shall pay in full an employee who leaves employment other than by discharge not later than the next regularly scheduled payday.

How are Employers Penalized for not Paying Employees in a Timely Manner?

The Texas Payday law allows the Texas Workforce Commission to penalize employers in a monetary amount.

Additionally, Section 61.019 of the Texas Payday Law states,

(a) An employer commits an offense if:

  1. at the time of hiring an employee, the employer intends to avoid payment of wages owed to the employee; and

  2. the employer fails after demand to pay those wages.

(b) An employer commits an offense if the employer:

  1.  intends to avoid payment of wages owed to an employee;

  2. intends to continue to employ the employee; and

  3. fails after demand to pay those wages.

Failure to pay employees under this section is considered a felony of the third degree under Texas law. An attorney general may also seek injunctive relief in district court against an employer who repeatedly fails to pay wages to the employee.

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Trending Employment Law Topics

  1. Houston EEOC
  2. Retaliation Lawyer

Texas Equal Employment Opportunity Commission

Texas Equal Employment Opportunity Commission

Discrimination in the workplace is not uncommon in the United States. Unfortunately, it is all too common and frequently makes headlines. However, the United States federal government has established the Equal Employment Opportunity Commission (EEOC) to handle instance of discrimination in the workplace. Want to learn more about the EEOC? Let’s discuss.

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What is the Equal Employment Opportunity Commission?

The Equal Employment Opportunity Commission (EEOC) is a federal agency established in order to administer and enforce federal civil rights laws that target instances of discrimination in the workplace. The EEOC handles discrimination complaints based on the following characteristics:

  1. Race and national origin
  2. Gender/Sex
  3. One’s Children
  4. National Origin
  5. Religion
  6. Age
  7. Disability
  8. Pregnancy
  9. Sexual Orientation
  10. Gender Identity
  11. Gender Information

The EEOC also handles complaints based on any retaliation against and individual for reporting or opposing a discriminatory practice.

Filing a complaint with the EEOC provides federal remedies and deterrence of further discriminatory behavior. It is monumentally important to utilize the EEOC to deter further occurrences of systematic discrimination by employers.

What is the Role of the Equal Employment Opportunity Commission?

Once a complaint is filed with the EEOC, the federal agency has the authority to investigate the complaint of discrimination against the named employers. The EEOC will then conduct the investigation in a fair and accurate manner to assess the allegations made in the charge. After a fair investigation, the EEOC will make a determination as to the original complaint.

In the instance that discrimination has truly occurred, the EEOC will then put forth efforts to settle the complaint. If the efforts made by the EEOC to settle the complaint prove to be unsuccessful, the EEOC reserves the right to file a lawsuit. It is important to note, that although the EEOC may file a lawsuit to preserve the rights and interests of the general public, the EEOC may choose not to pursue legal action in all instances in which the agency finds discrimination has occurred.

The EEOC attempts to prevent discrimination through a public outreach through specific programs created by the agency.

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Most Popular Employment Law Topics Today

Retaliation For Refusing To Commit An Illegal Act In Texas

Retaliation For Refusing To Commit An Illegal Act In Texas

It is not uncommon that an employer asks an employee to commit an illegal or an unethical act in the course of business. Fortunately, Texas law and legal precedent protects employees that find themselves in this predicament.

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Terminating the Working Relationship in Texas

The state of Texas is considered an employment-at-will state. In an at-will state, like Texas, both the employer and employee may terminate the relationship at any time. The employer and employee may do this with or without warning or cause, unless the contract that created the relationship expressly states otherwise.

The Sabine Pilot Doctrine

Although Texas is an employment-at-will state, and employers and employees may terminate the working relationship at any time, there lies one exception to the rule – the Sabine Pilot Doctrine.

The Sabine Pilot Doctrine arose from a Texas Supreme Court case, Sabine Pilot Serv. v. Hauck (Tex. 1985). In the Sabine Pilot case, the Supreme Court’s decision stated that an at-will employee may sue the employer if the employee is fired for refusing to commit an illegal or unethical act. This doctrine prohibits employers from terminating employees for the sole reason of refusing to perform an illegal or unethical act.

Justice Kilgarlin states in his decision,

We now hold that public policy, as expressed in the laws of this state and the United States which carry criminal penalties, requires a very narrow exception to the employment-at-will doctrine announced in East Line & R.R.R. Co. v. Scott. That narrow exception covers only the discharge of an employee for the sole reason that the employee refused to perform and illegal act. We further hold that in the trial of such a case it is the plaintiff’s burden to prove by a preponderance of the evidence that his discharge was for no reason other than his refusal to perform an illegal act. (Sabine Pilot Serv.)

It is monumentally important to note that the exception carved out of the Sabine Pilot Doctrine only applies if the sole reason for an employee being discharged is the refusal of committing an illegal or unethical act. This statement also shifts the burden of proof on the plaintiff to prove that the discharge is for no other reason but refusal to commit the illegal act. One must also note that the illegal act in which the employee refuses to commit must also be punishable by criminal penalties.

What Remedies are Available for Refusing to Commit Illegal or Unethical Acts?

If an employee sues an employer under the Sabine Pilot cause of action and proves to be successful, that employee may be entitled to the following remedies:

  1. Past and future lost wages and benefits
  2. Damages for Mental Anguish
  3. Putative damages
  4. Reasonable attorney’s fees
  5. Court costs

The court may also order that the employee be reinstated to the same position or one of equal status. Texas precedent shows that an employee will likely not be successful or have available remedies under a Sabine Pilot cause of action against another employee.

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This Week’s Trending Topics

  1. Privacy Rights in Workplace Computer Files

Can Your Employer Use Your Internet Browsing History as Evidence to Fire You

Is your employer watching? Are they monitoring the time you spend on the internet? But more importantly, can they use what they find out as evidence to fire you? In a recent decision, the answer to all of the above was YES.

A nearly 10-year employee was terminated for excessive internet usage – basically for not working while on duty. The union grieved the termination and made an application in advance of the arbitration that the internet investigative report is excluded as inadmissible because it infringed the employee’s privacy and was in violation of the B.C. Freedom of Information and Protection of Privacy Act (“FIPPA”). In the decision, Fraser Health Authority v. H.S.A.B.C., 2011 CarswellBC 1174 (B.C.A.B.), Arbitrator Glass held that there was no privacy violation and the report was admissible

One of the key facts in the decision was that the employer had a clear policy that the computers and the data on them were the property of the employer and that they would be monitored. The policy also stated that personal use of the computers was to be done while on breaks and was not to interfere with the employer’s operations.

The internet investigative report was generated based on data pulled from the employer’s proxy server, which included log records of the URL visited, web category, date and time, IP address of the source computer and the user account when the internet was accessed through the proxy server. The internet report was only requested after the employer had several pieces of evidence from other employees about the individual’s excessive use of the internet.

The employer, in this case, was a public body and therefore under FIPPA including the following:

(a) the collection of that information is expressly authorized under an Act, or
(b) that information relates directly to and is necessary for an operating program or activity of the public body.

The Arbitrator found that the internet investigative report fell within the exception of s. 26(c) and was not in violation of FIPPA. The Arbitrator found that the purpose of the audit was “legitimate and necessary” and the basis for looking into it was “reasonable”. I would suggest that a key factor was that the Arbitrator held that the scope of the internet investigative report was reasonably limited. It was not simply a copy of all the personal data of that employee, it was basically a list of websites visited and the time spent browsing.

Privacy Rights in Workplace Computer Files

Many employers are under the impression that they can access, copy and use any information stored on computers provided to employees in the workplace. One might especially believe that to be the case where there was suspicion of possession of child pornography on a teacher’s work laptop. The Ontario Court of Appeal recently held in a criminal case that an employee’s privacy rights under s. 8 of the Charter were breached when the police used a copy of the temporary internet files on the employee’s laptop provided by the employer.

The decision in R. v. Cole, 2011 ONCA 218 provides new guidance to employers about what is within the reasonable expectation of privacy of an employee. This decision has been widely written about (see “Computer Ruling seen as landmark workplace decision”, Globe & Mail, March 25, 2011).

The Court of Appeal drew a distinction between the initial search by a school technician and the resulting disc which had copies of specific nude photographs and the complete search of the teacher’s computer and the resulting disc containing all temporary Internet files, the laptop computer itself and the mirror copy of the laptop computer. It was only the later broader search including all temporary Internet files that were found to infringe the teacher’s privacy.

While this decision is more directly about police conducting warrant-less searches, the finding that the search was overly broad in scope and therefore a violation of the teacher’s privacy rights is directly applicable to employment law. There is now an appellate court decision stating that this employee had a reasonable expectation of privacy in a workplace computer. The court found that the laptop was also used for personal use and thus the court drew a parallel with the prior decision of the Supreme Court of Canada in R. v. Morelli, 2010 SCC 8, where the court held.

These line of cases make it very clear that employers should have policies about the ability to monitor use and restrict personal use of computers at work. Even where it is a workplace device, based on this decision an employee may very well have a reasonable expectation of privacy.

Why Should I Hire Employment Law Consultants

Why should any company ever hire a lawyer, unless of course, something happens to the company, or within it and the company needs one? Well, that is the answer to the question, “Why should I hire employment law consultants?” We have all heard the old cliché about “failing to prepare is preparing to fail.” It just so happens that this is the single most identifiable reason for small business failure. The unexpected happens and in accordance with Murphy’s Law, the day before you were planning to address the need to prepare for.

Studies have shown that small businesses that experience data loss for greater than a fortnight are 80% likely to fail within one year. Imagine the impact of a fundamental change in employment law on a small business that affects half of the employees. Now imagine that it is your business and you did not catch the story. This is why the responsible and success oriented business entrepreneurs engage an Employment Law Consultant. The first key to success is the US boy scouts motto “Be prepared” But it is not all about risk anticipation and mitigation.

Recently, in the US the government announced a new program that pays up to $5000 in benefits to certain businesses that hire new employees under certain instances. If those US businesses had retained Employment Law Consulting, they would have known about the new law long before it passed and would have been ready to maximize their benefit straight away. That is the second key to success, keep looking forward. You see, the smallest business fail to consider the future as “today’s problems are enough.” This means that they will forever be behind the curve and their fellows will be forever ahead. This is one of the “ABC’s of business, Always Be Considering.

So what are some of the services you should look for in an Employment Law Consultant? Well first off, they should ensure that they would continuously monitor employment law to ensure that you are not only compliant but also well positioned to derive maximum advantage from potential changes. They should certainly provide ongoing management of all current and future employment contracts. Gone are the days of the simple employment, what with teleworkers and contract employees and temporary workers. What about disciplinary and grievance procedures? Have they ever been reviewed? Are you at risk? They should also answer the telephone or email when you have a question. For a general package of services the charges should be fair, within the range of 125 to 150 per month for the above and related services should do nicely.

This is the 21st century, yes? Small businesses have taken to hiring other companies rather than employees to ensure the proper handling of their affairs, Payroll and taxation are regularly outsourced. Human Resources are the next big thing. Well, this is the one you really need. With outsourcing, you are guaranteed quality of services and work product and some tasks are just too important to allow anything less. Employment Law Consulting will be in the successful business’s toolkit along with the accountancy, payroll services, and technology consulting. The issue is whether it belongs in your toolkit. For a hundred or two per month you will ensure that your vital operation are taken care of by a team of experts rather than trying to remember to keep up with the news.