Texas Whistleblower Act

Whistleblower Lawyer Austin Texas

Mar 15, 2013 — by Jeff Mundy
Tags: Whistleblower

 

The Texas Whistleblower Act bars retaliation against a public employee who reports his employer's or co-worker's "violation of law" to an "appropriate law enforcement authority"-defined as someone the employee "in good faith believes" can "regulate under or enforce" the law allegedly violated or "investigate or prosecute a violation of criminal law." 

We hold, consistent with our prior cases, that the Act's constricted definition of a law-enforcement authority requires that a plaintiff's belief be objectively reasonable. On that score, purely internal reports untethered to the Act's undeniable focus on law enforcement-those who either make the law or pursue those who break the law-fall short. Other states' whistleblower laws accommodate internal reports to supervisors; Texas law does not. Under our Act, the jurisdictional evidence must show more than a supervisor charged with internal compliance or anti-retaliation language in a policy manual urging employees to report violations internally. For a plaintiff to satisfy the Act's good-faith belief provision, the plaintiff must reasonably believe the reported-to authority possesses what the statute requires: the power to (1) regulate under or enforce the laws purportedly violated, or (2) investigate or prosecute suspected criminal wrongdoing.

II. Discussion

Section 554.002 of the Whistleblower Act provides:

(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 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.

Since the Legislature defined when "a report is made to an appropriate law enforcement authority," we must use that statutory definition.

This case raises the following issue: Did Gentilello make a good-faith report to an appropriate law-enforcement authority under the Act when he reported alleged violations of law to a supervisory faculty member who oversees internal compliance with myriad Medicare/Medicaid requirements at a state medical school?

A. An Employee's Good-Faith Belief that the Entity Is an Appropriate Law-Enforcement Authority Must Be Objectively Reasonable.

We explained in Texas Department of Transportation v. Needham that "good faith" in the Whistleblower Act context has both objective and subjective elements. It turns on more than an employee's personal belief, however strongly felt or sincerely held. It means:

(1) the employee believed the governmental entity was authorized to (a) regulate under or enforce the law alleged to be violated in the report, or (b) investigate or prosecute a violation of criminal law; and

(2) the employee's belief was reasonable in light of the employee's training and experience.  In other words, the employee'sbelief must be objectively reasonable. Even if Gentilello "honestly believed" that Rege was an appropriate authority, that belief can only satisfy the good-faith requirement "if a reasonably prudent employee in similar circumstances" would have thought so.

We have had three occasions to remove the objective element and protect internal reports to workplace supervisors who lacked the Act's specified powers. All three times we have declined, in 2002, 2009, and 2010.

University of Texas v. Gentilello, (Tex. 2013)

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