Whistleblower and Qui Tam Claims

What is a Whistleblower. The Texas legislature has provided a general law that protects employees for “blowing the whistle” on violations of law by state and local governments. Texas's Whistleblower Act prohibits a state or local governmental entity from taking 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 . Tex. Gov't Code § 554.002(a). “An appropriate law enforcement authority” is part of a state or local governmental entity or 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. See Tex. Gov't Code § 554.002(b). Because San Antonio has so many governmental organizations located in the area, it is a ripe breeding ground for Whistleblower claims. Sometimes these claims are referred to as qui tam claims. The term qui tam is a Latin phrase, meaning that the person sues on behalf of himself or herself and the government. Qui tam lawsuits are filed under seal so that the government may conduct its own investigation without the defendant knowing of the filing. If the government joins the lawsuit, the case is unsealed and the government and relator jointly prosecute the case. Interestingly, a qui tam action may proceed only via the first filer.

Other Laws Protecting Workers. There are other laws that protect the speech and conduct of employees in the private sector as well. Some of these laws prohibit:

Health Care Employees : Employees in the health care profession are protected under numerous statutes:

Assisted Living Facilities: An employer who is licensed under Texas's Assisted Living Facilities laws may not retaliate against an employee for filing a complaint, presenting a grievance, or providing in good faith information relating to personal care services. Tex. Health & Safety Code Ann. § 247.068(a).

Hospice & Home Care: An employer who is licensed under Texas's Home and Community Support laws may not retaliate against an employee for filing a complaint, presenting a grievance, or providing in good faith information relating to home health, hospice, or personal assistance. Tex. Health & Safety Code Ann. § 142.0093(a). Additionally, a provider of home or community-based services may not retaliated against for reporting suspected abuse, neglect, or exploitation of the individual requiring home services. Tex. Hum. Res. Code § 48.257.

Hospitals: A hospital, mental health facility, or treatment facility may not discharge (or discriminate against) an employee for reporting violations of law. The report may be made internally to a supervisor or to a state regulatory of law enforcement agency. Tex. Health & Safety Code Ann. § 161.134(a).

Intermediate Care Facilities for the Mentally Retarded: An intermediate care facility for the mentally retarded may not discharge (or discriminate against) an employee for reporting violations of law, including violations of laws pertaining to such facilities. The report may be made to a supervisor, a state regulatory agency, or law enforcement agency. Also, employees who initiate or cooperate in an investigation or proceeding pertaining to the facility's care, services, or conditions are protected. Tex. Health & Safety Code Ann. § 252.132.

Nursing Homes: A nursing home or related institution may not discharge (or discriminate against) an employee for reporting violations of laws pertaining to nursing homes and related institutions, including reports of abuse and neglect. Also, employees who initiate or cooperate in an investigation or proceeding are protected. Tex. Health & Safety Code Ann. § 242.133. Violations of law by nurses and doctors to their respective licensing board.

Medicaid: An employee may not be discharged (or discriminated against) for reporting fraud or falsification of a Medicaid claim. Tex. Hum. Res. Code § 36.115.

Occupational Health and Safety: An employee may not be suspended or discharged in retaliation for reporting an alleged violation of an occupational health or safety law via the Safety Violations Hotline (through the Texas Department of Insurance, Workers' Compensation Division). The report must be made in good faith. Tex. Lab. Code Ann. § 411.082.Violations of commercial motor vehicle safety regulations

Hazards from asbestos. See Asbestos Hazard Emergency Response Act (AHERA) 15 U.S.C. §2651

Violations of federal environmental regulations

Improper handling of toxic substances. See Toxic Substances Control Act (TSCA) 15 U.S.C. §2622

Violations of federal energy laws

Violations of the Atomic Energy Act

Reporting violations of airline regulations. See Air Carrier Whistleblower Protection Program.

Reporting unsafe pipeline operations

Reporting a violation of worksite health or safety to the Texas Workers’ Compensation’s Commission

Federal Whistleblower Act. The Whistleblower Protection Act of 1989 is a federal law that protects federal whistleblowers who work for the government and report agency misconduct. A federal agency violates the Whistleblower Protection Act if agency authorities take (or threaten to take) retaliatory personnel action against any employee or applicant because of disclosure of information by that employee or applicant. Whistleblowers may file complaints that they believe reasonably evidences a violation of a law, rule or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety.

Statute of Limitations under Texas Law. The Texas Whistleblower Act provides for a 90 days deadline in which to file suit. It also requires an employee to first file a grievance if the state or local agency provides for a grievance procedure. If the employee files a grievance, then the duration of the grievance will toll the statute of limitations (i.e., toll the deadline).

Statute of Limitations under Federal Law. There are too many different Federal statutes (each with its own limitations period) to list them all here. Just know that some of them are as short as 30 days.

Evidentiary Considerations. As in most employment law claims, these cases are “she said, he said” type cases and therefore documenting everything that occurs is very important. You are encouraged to keep a diary or journal of what is going on at work as well as keeping copies of all correspondence to and from your employer (written complaints to the HR department, emails to and from your supervisor and/or coworkers, and any other relevant documents). If you are in San Antonio, or within the state of Texas, you can also make audio recordings of conversations without the other parties’ consent or knowledge as long as you are in the same room as the recording device. See this resource for the legalities of audio recordings in Texas.

If you or a loved one has been subject to an adverse employment action because of whistleblowing and you work for a governmental agency, please contact the attorneys of Carabin Shaw in San Antonio today. We offer free initial consultations and work on a contingent fee basis, which means that there is never a fee unless we successfully resolve your case. Our experienced San Antonio employment lawyers will know how to deal with Whistleblower claims so you don’t have to.

For immediate assistance and to set up a free consultation with one of our experienced lawyers, call us toll-free at 800-862-1260.

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