Were you fired from your job in Texas because you complained about illegal behavior or asserted your legal rights? If so, you may be able to sue for wrongful termination for retaliation or whistleblowing. Federal and Texas employment laws prohibit employers from firing employees who exercise their rights under these laws or who file complaints alleging violations of these laws. Employees may also be protected for whistleblowing: reporting that the company has broken laws unrelated to workers’ rights (such as laws regulating consumer protection, government contracts, or shareholder fraud).
This article explains these legal protections, how to make a retaliation or whistleblowing claim, and more.
An employer commits retaliation when it fires or disciplines an employee for exercising a workplace right or complaining about illegal workplace behavior. Employment laws—such as those prohibiting discrimination, requiring employers to pay the minimum wage and overtime, and mandating a safe workplace—are primarily enforced through employee complaints. Because state and federal government agencies rarely conduct random workplace audits, they typically rely on employees to come forward with violations.
Once the agency receives a complaint, it might investigate, impose a fine, or even make an administrative finding that an employer has likely violated the law. However, the agency will rarely sue the employer directly. Instead, the employee must bring a lawsuit to vindicate his or her rights.
Some of the workplace laws that protect employees from retaliation include:
Whistleblowing occurs when an employee reports illegal conduct at work that is not directly related to workplace rights. For example, if you report that your company is filing false tax returns or lying to government auditors, you are a whistleblower.
An employer may not fire an employee for blowing the whistle on certain types of misconduct. Some federal laws that prohibit certain types of unethical or illegal corporate behavior explicitly protect employee whistleblowers. For example, the Sarbanes-Oxley Act, passed in 2002 to protect investors from corporate financial wrongdoing, includes whistleblower protections for employees who report financial irregularities and shareholder fraud.
Unlike some other states, Texas does not have broad whistleblower protection for employees. However, Texas courts do recognize one situation where an employee can claim whistleblower protection. An employee may not be fired for refusing to engage in illegal conduct that carries criminal penalties. In other words, the employee must be faced with the choice of criminal prosecution for obeying the employer’s order or termination for refusing to carry it out. In this limited circumstance, a Texas employee may sue for wrongful termination in violation of public policy.
If your Texas employer fired you for reporting illegal behavior or exercising your legal rights, you may have a wrongful termination claim for retaliation or whistleblowing. To find out, schedule a meeting with an employment lawyer.
Retaliation and whistleblowing claims can be legally complicated. A variety of state and federal statutes prohibit employers from taking action against employees who assert their rights or complain about misconduct. An experienced lawyer can help you figure out which laws protect you and how best to proceed.
To prepare for your meeting, make a timeline of events: the facts underlying your complaint or your report, when you complained or tried to exercise your rights, and what happened as a result. To prove retaliation or whistleblowing, you must show that your employer fired you because of your complaint or report. Timing is key: The less time between your complaint or attempt to exercise your rights and your employer’s action against you, the stronger your claim is. You’ll also need to show that the person who fired you (or made the decision to fire you) knew of your protected activities.
A lawyer will review the facts and explain the legal theories that might apply. A lawyer can help you decide on the best strategy, your likelihood of winning in court, and the range of damages you might be awarded if you succeed. Once you’ve come up with a plan, a lawyer can help you try to settle your claims with your employer, mediate your dispute, file an administrative charge, or take your employer to court.
Especially if you are out of work, you may worry about how you will pay a lawyer to represent you. Depending on your claims, a lawyer may be willing to take your case on a contingency fee basis. In a contingency fee arrangement, the lawyer is paid only if you win, by taking a percentage of the money you receive. Also, some retaliation statutes include an attorneys' fee provision, requiring a losing employer to pay the winning employee’s legal fees.
For certain retaliation claims, you may have to file a complaint with a government agency before you go to court. For example, if you were fired for complaining about harassment or discrimination, you must first file a charge of discrimination with the Equal Employment Opportunity Commission or the Texas Workforce Commission. If you want to sue for wrongful termination in violation of the Sarbanes-Oxley whistleblower protections, you must first file a complaint with the Occupational Safety and Health Administration.
Not all retaliation claims are subject to this rule, however. And, for some types of retaliation claims, you may—but are not required to—file an administrative charge before going to court. Your lawyer can help you figure out the requirements for your particular claim in your state, as well as the best strategy for proceeding.
The monetary damages available if you win a retaliation or whistleblowing case depend on the law underlying your claims and how strong those claims are. For most wrongful termination cases, an employee can ask for:
In some cases, you might also be entitled to emotional distress damages, awarded to compensate you for the pain and suffering caused by your termination. Punitive damages, intended to punish your employer for particularly egregious misconduct, may also be available. And, in some whistleblower cases, you might be eligible for a fee or bounty for protecting the public from wrongdoing. (This might be a set amount per violation, a percentage of the total sanction against the employer, or some other amount determined by the statute or the court.) Your lawyer can explain what types of damages might be available in your case.