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Whistleblowing is not protected by the Whistleblower Act unless a whistleblower’s report is to an “appropriate law enforcement authority.

Written by Mr. Roger Davie on Wednesday, 30 Nov 2016.

Whistleblowing is not protected by the Whistleblower Act unless a whistleblower’s report is to an “appropriate law enforcement authority. See Gov’t Code Ann. § 554.002. First, it should be understood that the whistleblower act of Texas only applies to government employees.  There is no general whistleblower statute for employees of private non-government employees.  It is illegal to fire a private employee for refusal to do an illegal act, but reporting an illegal act may get you fired.  On the other hand government employees may be able to sue under the whistleblower act for reporting illegal activity but probably cannot sue for being fired for refusing to do an illegal act.  Sound illogical? It is, but that is nature of Texas employment law.  If have written extensively on the refusal to do an illegal act for private non-government employees, but will now do a series of article for government employees on the Whistleblower Act.  

It is not easy to have a claim under the Whistleblower Act.  As stated above the government employee must report the illegal act to "appropriate law enforcement".  Therefore for most employees internal reporting of illegal acts will not get you a whistleblower claim.  It may just get you fired.  However there have been a lot of controversy about what is an appropriate law enforcement agency.

Unless the employee is actually employed by a “law enforcement authority,” most “internal” reporting is not protected. Univ. of Texas at Austin v. Smith, 2015 WL 7698091 (Tex. App.—Austin 2015) (not for publication). Even employees of law enforcement authorities are not necessarily protected for all internal reporting. See Loer v. City of Nixon, 2015 WL 9257031 (Tex. App.—Corpus Christi 2015) (not for publication) (even report to chief of police is not protected whistleblowing if he is whistleblower’s direct supervisor and is very person the whistleblower alleges to have broken the law). The Texas Supreme Court reaffirmed its view in this regard in Office of the Attorney General v. Weatherspoon, 472 S.W.3d 280 (Tex. 2015). An employer’s managers and supervisors are not “appropriate law enforcement authorities” unless the employer agency is charged with enforcing the very law alleged to be broken. The court also reiterated its view that it makes no difference if the employer requires employees to report internally before calling appropriate law enforcement authorities. Complying with the employer’s rule, and reporting internally, may expose the whistleblower to immediate retaliation, but the employer’s rule does not make the internal recipient a “law enforcement authority” and the whistleblower is not protected by law. See also Univ. of Texas at Austin v. Smith, 2015 WL 7698091 (Tex. App.—Austin 2015) (not for publication) (designating a particular “compliance” office within employer agency did not make that office a “law enforcement authority”).

So what is the answer?  Go see a board certified employment lawyer if you suspect and want to report illegal activity.  There are lots of hoops that must be jumped through and if you miss one of these hoops you may find yourself without a claim or a job!.  As an El Paso employment lawyer I usually see people after that have been wrongfully terminated and then it is often too late to fix the mistakes the employee made in reporting the illegal act.  So make sure you see a an employment lawyer first.

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