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What is the Whistle Blower Act?**
Workers’ compensation is a form of insurance that provides wages and medical benefits to employees who suffer a work-related injury or illness. Private employers in Texas may choose if they will provide this coverage to their employees, as it is not required. However, there are substantial benefits to an employer who chooses to cover their employees by workers’ compensation insurance, and substantial penalties for those who do not.
When an employer obtains a workers’ compensation insurance policy aka “subscribes” to a workers’ compensation policy, statutory limits are placed on the type and amount of compensation that an employee may recover if they are injured at work. As a result, an employer may become immune to certain types of lawsuits, and its employees may be forced to seek compensation for work related injuries solely from the employer’s workers’ compensation insurance.
When an employer does not obtain a workers’ compensation insurance policy, they are known as a “non-subscriber”, and the employer may be sued for an employee’s on-the-job personal injuries without the benefit of any statutory limitations. Further, the law restricts the non-subscribing employer’s ability to defend itself in court by limiting the defenses that may ordinarily be available in other types of personal injury cases.
The law prohibits an employer from unlawfully retaliating against an employee for engaging in “Protected Activity.” The exercise of an employee’s rights in relation to the making of a claim under an employer’s workers’ compensation insurance policy is Protected Activity pursuant to Section 451.001 of the Texas Labor Code. Such rights include: (1) filing a claim for workers’ compensation in good faith; (2) retaining counsel to represent the employee in a workers’ compensation case; (3) instituting or causing to be instituted a claim for workers’ compensation benefits in good faith; and (4) testifying or intending to testify in a claim for workers’ compensation benefits. Unlawful Workers’ Compensation Retaliation occurs when an employer takes a “Materially Adverse Action” against an employee for exercising or attempting to exercise these rights.
A “non-subscribing” employer (defined above) cannot be held liable for Workers’ Compensation Retaliation, but can be held liable for the underlying work related personal injuries. Please visit our On-The-Job Injury Without Workers’ Compensation: Non-Subscriber page for more information.
In addition to a claim for Worker’s Compensation Retaliation, an employee who suffers an adverse employment action as a result of a job related injury may also have claims for Family Medical Leave Act (FMLA) Retaliation and Disability Discrimination under the Americans with Disabilities Act (ADA). Please visit those pages of this website as well.
What Constitutes a Materially Adverse Action?**
A “Materially Adverse Action” is one that is harmful to the point that it could well dissuade a reasonable employee from exercising or attempting to exercise his or her rights in relation to the making of a claim under an employer’s workers’ compensation insurance policy. The requirement of materiality is intended to separate significant from trivial harms. Accordingly, this standard does not encompass the petty slights, minor annoyances, and simple lack of good manners that employees regularly encounter in the workplace. In determining whether an action is materially adverse, Courts look to indicia such as whether the action affected “job title, grade, hours, salary, or benefits” or caused “a diminution in prestige or a change in standing among co-workers.
How May an Employee Prove that their Employer Illegally Retaliated Against Them?**
There are two principal ways that an employee can prove that an employer retaliated against the employee:
- Direct Evidence of Discrimination.** Direct evidence of retaliation is evidence that, if believed, proves the fact of retaliatory intent without inference or presumption. Direct evidence of retaliation is usually found where an employer admits to the employee or someone else, verbally or in writing, that their intent or motive is to take a Materially Adverse Action (described above) against an employee because the employee exercised or attempted to exercise his or her rights under the FMLA. Further, direct evidence can be found where an employer denies an eligible employee’s request for FMLA leave for which the employee meets all of the statutory requirements.
- Circumstantial Evidence (the Burden Shifting Analysis).** Courts recognize that direct evidence of retaliation is rare. Accordingly, they developed a system whereby an employee may prove retaliation using “circumstantial evidence.” Circumstantial evidence is another form of evidence which relies on inferences to establish retaliation. One method that an employee may prove retaliation with circumstantial evidence is by proving that the employee: (1) engaged in Protected Activity under the Texas Labor Code 451.001 (i.e., as discussed above in more detail, the employee exercised rights in relation to the making of a claim made under an employer’s workers’ compensation insurance policy); (2) the employer took a Materially Adverse Action against the employee; and (3) a “Causal Link” exists between the employee’s Protected Activity and the Materially Adverse Action. If the employee successfully establishes these elements, a presumption of retaliation is created. Proving these elements is known as establishing a “Prima Facie Case” of retaliation. It is then up to the employer to produce evidence of legitimate, non-retaliatory reasons for the Materially Adverse Action. If so, then the employee must show that the employer’s stated reasons were “pretext” or “pretextual,” meaning that they are untrue, unworthy of belief and/or made up to hide their true discriminatory intentions. If the employee is successful, the employee may win their case. To satisfy the Causal Link requirement, the employee must prove that but for engaging in Protected Activity, he or she would not have suffered the Material Adverse Action. Evidence of the Causal Link may include, but is not limited to: (1) little or no lapse of time between the employee engaging in Protected Activity and the Materially Adverse Action (for example: terminating an employee while they are on leave for Workers’ Compensation leave or shortly thereafter); (2) knowledge of the employee engaging in Protected Activity by those making the decision regarding the Materially Adverse Action; (3) expression of a negative attitude towards the employee engaging in Protected Activity; (4) failure to adhere to established company policies; (5) differential treatment in comparison to similarly situated employees; (6) evidence that the stated reason for the Materially Adverse Action was false; or (6) not notifying the employee of his rights with regard to workers’ compensation.
What are an Employer’s Defenses to a Claim of Retaliation?**
Generally.** An employer may have several defenses to a claim of retaliation. Some defenses are factually based, such as when an employer has proof that an employee’s description of the facts is not true. Sometimes, the employer may challenge whether the conduct or the resulting harm was sufficient to give rise to a statutory violation. Other times, the employer many challenge whether the employee made the claim for workers’ compensation insurance benefits in good faith. Many other defenses may be available depending on the circumstances.
How, when and to whom should an employee complain about Worker’s Compensation Retaliation?**
- Employer’s Internal Complaint Process.** An employee of a private employer may complain to the employer using the employer’s internal complaint procedures.
- Claims of Workers’ Compensation Retaliation are Not filed with either the EEOC or TWC (There is no Requirement to “Exhaust Administrative Remedies”).** While some types of retaliation and discrimination claims require that a “Charge of Discrimination” (also used for retaliation) be timely filed with either the Equal Employment Opportunity Commission (“EEOC”) or the Texas Workforce Commission, Human Rights Division (“TWC”), as a prerequisite (an act which is required to be performed before the lawsuit is filed) to an employee bringing a lawsuit for retaliation under certain other statutes, there is no such requirement for Workers’ Compensation Retaliation. FMLA retaliation claims also do not require “Exhaustion of Administrative Remedies” (the timely and properly filing a Charge of Discrimination). However, such claims are subject to a “Statute of Limitations.” A Statute of Limitations is a deadline by which a lawsuit must be filed or, otherwise, the right to bring a lawsuit may be forever forfeited. Accordingly, an attorney should always be consulted immediately without delay.
What Damages Can an Employee Get from a Private Employer Because of Retaliation? How Much Money can an Employee Get from an Employer Because of Retaliation?**
The following types of damages are non-exclusive, and may be available to an employee who wins a retaliation case depending on the facts of the case:
- Back Pay and Front Pay.** Back Pay and Front Pay compensate an employee for wages lost because of a retaliatory act. Back pay compensates the employee for wages lost up to the time of trial. Front pay compensates and employee for wages which are anticipated to be lost after trial.
- Lost Benefits.** An employee may be able to recover the value of benefits that he or she would have received if not for the employer’s retaliatory conduct.
- Mental Anguish.** Mental anguish damages may be recovered by: (1) producing evidence of the nature, duration and severity of mental anguish and thereby proving a substantial disruption in the employee’s daily routine; or (2) proving that the employee suffered a high degree of mental pain and
distress which is more than mere worry, disappointment, anger, embarrassment and the like.
- Exemplary (Punitive) Damages.** Exemplary damages are available only if the employer committed an egregious violations of the law with actual malice (intent to cause injury to the employee. It is not sufficient to show that the employer merely acted wrongfully.
- Other Remedies.** An employee may be entitled to other remedies as well.
An employee’s damage award may be reduced by the amount already received from the employer’s workers’ compensation insurer. For instance, if the insurance paid for a portion of the employee’s lost wages, the employee may not be able to recover that amount again from the employer.
*A Free Consultation is a short discussion of your legal needs to determine if our firm can be of assistance to you. It does not include free legal advice and nothing discussed during the Free Consultation should be construed as legal advice. Free Consultations are limited to certain practice areas. SENDING A MESSAGE THROUGH THIS WEBSITE, EMAILING OR CALLING AND/OR LEAVING A VOICEMAIL MESSAGE DOES NOT CREATE AN ATTORNEY/CLIENT RELATIONSHIP. NO SUCH RELATIONSHIP IS ESTABLISHED UNTIL AN AGREEMENT OF SUCH A RELATIONSHIP IS REDUCED TO WRITING AND SIGNED BY JACK QUENTIN NICHOLS. IF NO RESPONSE TO YOUR MESSAGES ARE RECEIVED BY YOU WITHIN 24 HOURS, YOU SHOULD CONSIDER OUR FIRM TO HAVE DECLINED TO REPRESENT YOU, AND YOU SHOULD SEEK THE ASSISTANCE OF ANOTHER ATTORNEY IMMEDIATELY AS THE LAW LIMITS THE TIME IN WHICH YOUR RIGHTS MAY BE ASSERTED. IF YOU SPEAK WITH AN ATTORNEY AND THEY DECLINE YOUR CASE, YOU SHOULD ALSO IMMEDIATELY SEEK THE ASSISTANCE OF ANOTHER ATTORNEY IMMEDIATELY FOR THE SAME REASONS.