How Can I sue for Wrongful Termination in Texas?

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1. The At-Will Doctrine and Its Exceptions.

Texas is a pro- business state and recognizes the at-will employment doctrine. This means, in a general sense, that an employer may terminate an employee for any non-discriminatory reason. Simply put, a boss can terminate a subordinate simply because he or she does not like that employee, thinks the employee is lazy, or doesn’t like the color of that employees shirt that day. Employers usually go to the trouble of making up some elaborate basis for the termination instead of simply firing the employee in exercise of the at-will doctrine. While the at-will doctrine provides employers substantial protection, and even freedom to engage in unfair attacks on employees or take sides in employee disputes (yes, employers can even lie about reasons for your termination and accept untrue facts that result in your discipline or termination), there have been a number of exceptions to the at-will doctrine put into place over the last fifty years. They are as follows:

Texas state law provides the following exceptions:

  • An employee of a state or local governmental unit discharged for whistleblowing.

  • A nursing home employee discharged for whistleblowing.

  • A hospital, mental-health-facility, or treatment-facility employee discharged for whistleblowing. This exception also applies to non-employees who suffer retaliation from a hospital, mental health facility, or treatment facility for whistleblowing.

  • A physician discharged for reporting the acts of another physician to the State Board of Medical Examiners.

  • An employee discharged because of race, color, disability, religion, national origin, age, or sex.

  • An employee discharged for reporting or opposing violations of the Texas Commission on Human Rights Act.

  • An employee discharged because of mental retardation.

  • An employee discharged for filing a workers’ compensation claim.

  • An employee discharged because of union membership or non-membership.

  • A permanent employee discharged because of active-duty service or training in the military forces of Texas or any other state.

  • A permanent employee discharged for serving on a jury.

  • An employee discharged for complying with a valid subpoena.

  • An employee discharged for having a child-support withholding order against the employee.

  • An employee discharged for taking time off to vote or to attend a political convention, or for refusing to vote in a certain way.

  • An employee discharged for reporting violations of the Hazard Communication Act.

  • An employee discharged for exercising the employee’s rights under the Agricultural Hazard Communication Act.

  • An employee discharged for using the Worker’s Commission’s toll-free telephone service to report a violation of an occupational health or safety law.

  • An employee discharged without good cause while labor and arbitration pursuant to the Texas Labor Arbitration Act is pending.

  • An employee discharged for refusing to buy certain merchandise.

  • An employee discharged for refusing to take an AIDS test, unless the test is necessary as a bona fide occupational qualification.

  • A registered nurse discharged for reporting incidents of poor nursing to the Board of Nurse Examiners.

  • A health-care employee discharged for refusing to participate in an abortion or for participating in an abortion at another facility.

  • An employee of Harris County or Dallas County discharged for participating in the county grievance procedure.

Federal law also provides exceptions to the at-will employment doctrine. They are the following:

  • An employee discharged because of age.

  • An employee discharged because of race, color, sex, religion, or national origin.

  • An employee discharged for reporting or opposing a violation of Title VII of the Civil Rights Act of 1964.

  • An employee discharged because of a disability.

  • An employee discharged for refusing to submit to a lie detector test.

  • An employee discharged for declaring bankruptcy.

  • An employee discharged for filing a wage and hour claim.

  • An employee discharged for engaging in or refusing to engage in union activity.

  • An employee discharged to prevent the employee from attaining vested pension rights.

  • An employee discharged without receiving notice of a plant closing or mass layoff.

  • An employee discharged for whistleblowing about the following:

  • Job-related health and safety.

  • Violations of commercial-motor-vehicle safety regulations.

  • Asbestos hazards.

  • Unsafe shipping containers.

  • Violations of federal water and air-pollution laws.

  • Mishandling of toxic substances.

  • Violations of federal energy laws or Department of Energy Procedures.

  • Violations of the Atomic Energy Act of 1954.

  • Violations of airline regulations.

  • Accounting irregularities or securities-law violations at publicly traded companies (Sarbanes-Oxley).

  • Unsafe pipeline operation.

2. Healthcare Workers Have Statutory Protection for Whistleblowing

Employees in the health care profession have specific statutory protection for whistleblowing:

  • Assisted Living Facilities: An employer who is licensed under Texas’s Assisted Living Facilities laws may not retaliate against an employee for filing a complaint, presenting a grievance, or providing in good faith information relating to personal care services. Tex. Health & Safety Code Ann. § 247.068(a).

  • Hospice & Home Care: An employer who is licensed under Texas’s Home and Community Support laws may not retaliate against an employee for filing a complaint, presenting a grievance, or providing in good faith information relating to home health, hospice, or personal assistance. Tex. Health & Safety Code Ann. § 142.0093(a). Additionally, a provider of home or community-based services may not retaliated against for reporting suspected abuse, neglect, or exploitation of the individual requiring home services. Tex. Hum. Res. Code § 48.257.

  • Hospitals: A hospital, mental health facility, or treatment facility may not discharge (or discriminate against) an employee for reporting violations of law. The report may be made internally to a supervisor or to a state regulatory of law enforcement agency. Tex. Health & Safety Code Ann. § 161.134(a).

    • Separately, a non-employee of a hospital, mental health facility, or treatment facility may sue for retaliation under Tex. Health & Safety Code 161.135. This typically applies in the context of a physician who is an employee of a practice group and not the hospital, or a vendor who is working on hospital property and witnesses/reports healthcare violations.

  • Intermediate Care Facilities for the Mentally Retarded: An intermediate care facility for the mentally retarded may not discharge (or discriminate against) an employee for reporting violations of law, including violations of laws pertaining to such facilities. The report may be made to a supervisor, a state regulatory agency, or law enforcement agency. Also, employees who initiate or cooperate in an investigation or proceeding pertaining to the facility’s care, services, or conditions are protected. Tex. Health & Safety Code Ann. § 252.132.

  • Nursing Homes: A nursing home or related institution may not discharge (or discriminate against) an employee for reporting violations of laws pertaining to nursing homes and related institutions, including reports of abuse and neglect. Also, employees who initiate or cooperate in an investigation or proceeding are protected. Tex. Health & Safety Code Ann. § 242.133.

**Nurses receive additional protection when reporting certain violations required by law. Tex. Occ. Code Ann. § 301.413(b).

3. How to file a whistleblower or retaliation claim in Texas

Generally: The lawsuit generally must be filed within 2 years of the retaliatory action, unless otherwise specified by statute. You should contact a lawyer to assist you as soon as possible. There are often administrative requirements that mush be satisfied

Discrimination: An employee may file a written complaint with the Texas Workforce Commission, Civil Rights Division. The complaint must be filed within 180 days of the retaliatory action. The commission will investigate your claim and may decide to take action. Most of the time they do not, and the employee may file a lawsuit in an appropriate court.

Health Care Employees:

  • Hospitals: An employee may file a lawsuit. There is not administrative hurdle that applies here. An employee may be entitled to recover actual damages (including damages for mental anguish), exemplary damages, and reasonable attorney fees. An employee may also be entitled to reinstatement, compensation for lost wages, and reinstatement of benefits. The lawsuit must be filed within 180 days of the retaliatory action. If you believe you have a claim, you should contact a lawyer immediately. Tex. Health & Safety Code Ann. § 161.134/161.135.

  • Intermediate Care Facilities for the Mentally Retarded: An employee may file a lawsuit in an appropriate court. An employee may be entitled to recover actual damages (including damages for mental anguish), exemplary damages (triple the amount of actual damages), damages for lost wages, courts costs, and attorney fees. An employee may also be entitled to reinstatement of position and reinstatement of benefits. The lawsuit must be filed within 90 days of the retaliatory action or, if the employee notifies the Texas Workforce Commission of the retaliation, within 90 days of the employee’s notice to the commission. If you believe you have a claim, you should contact a lawyer immediately. Tex. Health & Safety Code Ann. § 252.132.

  • Nursing Homes: An employee may file a lawsuit in an appropriate court. An employee may be entitled to recover actual damages (including damages for mental anguish), exemplary damages (triple the amount of actual damages), damages for lost wages, courts costs, and attorney fees. An employee may also be entitled to reinstatement of position and reinstatement of benefits. The lawsuit must be filed within 90 days of the retaliatory action or, if the employee notifies the Texas Workforce Commission of the retaliation, within 90 days of the employee’s notice to the commission. If you believe you have a claim, you should contact a lawyer immediately. Tex. Health & Safety Code Ann. § 242.133.

  • Nurses: An employee may file a lawsuit in an appropriate court. An employee may be entitled to recover actual damages (including damages for mental anguish), exemplary damages (triple the amount of actual damages), courts costs, and attorney fees. An employee may also be entitled to reinstatement and compensation for lost wages. If you believe you have a claim, you should contact a lawyer immediately. Tex. Health & Safety Code Ann. § 242.133.