Lugar de Noticias Haynes and Boone
"Whistle While You Work": Triggers Protection for Healthcare Employees
Melissa M. Goodman
Jill J. Weinberg
Be careful how you treat healthcare employees who "blow the whistle" and complain to management or outside agencies about problems at their facilities. The Texas Health and Safety Code, Title 2, Section 161.134 prohibits all hospitals, mental health facilities and treatment facilities from disciplining, terminating or otherwise discriminating against any employee for reporting "a violation of law," including a violation of any rules under Chapter 161 of the Health and Safety Code or rules adopted by the Texas Board of Mental Health and Mental Retardation, the Texas Board of Health or the Texas Commission on Alcohol and Drug Abuse. The statute does not further define "a violation of the law" and there is no case law to enlighten employers. Additionally, if any adverse employment action is taken against the employee within 60 days after the employee makes a "good faith" report, there is a rebuttable presumption that the employment action was retaliatory.
Even more disconcerting is the potential liability exposure. Not only can complaining employees recover actual damages, including mental anguish damages, they also can recover exemplary damages, attorneys’ fees, lost wages, fringe benefits and seniority rights. Additionally, the employer can be forced to reinstate the workers to their former positions giving them another opportunity to blow the whistle and then cry protection under this section.
An employer may wonder how an employee could prove such a claim. Simple -- the employee walks out of the facility with copies of documents, including committee documents, investigation records, and patient records, relating to the purported "violation of law." If the documents are voluminous, the employee can simply download the information to support their case. The employer is left in a difficult -- and expensive -- position trying to get the documents back from the irate employee. Hopefully, the documents do not reach the patient or the patient’s lawyer and spur a malpractice lawsuit. The bottom line: a medical facility employer cannot protect its documents enough. All committee records and investigative documents should be marked " privileged" and properly secured, with limited access to them. Likewise, patient records should be closely guarded. Equally important, do not provide committee records, like e-mails, to non-committee members, even if it is part of the investigation. The more a document is circulated or accessible, the less likely it will maintain its privileged status.
The only saving grace in this statute is the short limitations period for filing a violation under the section. Lawsuits must be filed within 180 days after the alleged violation occurred or was discovered by the employee through the use of reasonable diligence. The Act does not prevent an employee from pursuing any other rights under various state or federal laws protecting them for blowing the whistle.
Finally, to ensure employees learn about this Act, Section 161.134 mandates that hospitals, mental health facilities and treatment facilities promptly and conspicuously post in a public area a statement that employees and staff are protected from discrimination or retaliation for reporting a violation of law. The statement must be in English and in a second language.
The information provided in this document is current as of the stated dates only. The reader should review for any changes or updates to the law or interpretations of the law when relying on the information provided herein. The reader should check for changes or updates, for interpretations and for other developments. This information is summary in nature and should not be relied upon as legal advice.
© 1999 - Haynes and Boone, LLP