Whistleblower Retalitation

What is the Whistle Blower Act?**

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?**

• 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.