Health Leaders Media reports that state and national nurses associations are applauding a jury’s quick verdict to acquit a Texas nurse of felony charges for reporting a physician to a state oversight board for allegedly providing unsafe patient care.  In the February 12, 2010 posting at www.healthleadersmedia.com , the online publication states that Anne Mitchell, a registered nurse, was charged with misuse of official information, a third degree felony, for reporting Rolando Arafiles, MD, to the Texas Medical Board.  Had she been convicted, Mitchell could have faced up to 10 years in prison, but, after a four day trial, an Andrews, Texas state court jury needed less than one hour to acquit Mitchell.  For her own part, Mitchell contended she was just doing her job.  The American Nurses Association (ANA) called the case blatant retaliation and Rebecca Patton, the President of the ANA, said “Nurse whistle blowers should never be fired and criminally charged for reporting questionable medical care.”  A whistleblower lawsuit claiming damages for her alleged unlawful termination may follow now that the criminal proceeding has concluded.

The United States Department of Labor’s Occupational Safety and Health Administration (OSHA) offers an OSHA Fact Sheet at www.osha.gov about whistleblower protections and the environment, stating that an employee may file a complaint with OSHA if an employer retaliates against an employee with unfavorable personnel action because the employee reported a potential environmental violation.  According to the OSHA Fact Sheet, covered employees can include employees who report potential violations of certain environmental laws, including violations of the Asbestos Hazard Emergency Response Act (AHERA); the Clean Air Act (CAA); the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA); the Federal Water Pollution Control Act (FWPCA); the Safe Drinking Water Act (SDWA); the Solid Waste Disposal Act (SWDA); and, the Toxic Substances Control Act (TSCA).  As OSHA states, if the employee’s employer is covered under one of these statutes, the employer may not discharge or in any other manner retaliate against the employee because the employee reported potential violations of environmental laws and regulations to the employer or the government.  Further, the employer may not discharge or in any manner retaliate against the employee because the employee filed, caused to be filed, participated in or assisted in a proceeding under one of these laws or regulations.

While OSHA states that these statutes do not expressly provide protection for an employee who refuses to work because of an alleged environmental violation by an employer, the Secretary of Labor interprets this statute to protect refusals to work when an employee has a reasonable belief that his or her working conditions are unsafe or unhealthful, and he or she does not receive an adequate explanation from a responsible official that the conditions are safe.

An employer may be found to have violated these statutes if the employee’s protected activity was a motivating factor in the employer’s decision to take an adverse or unfavorable personnel action against the employee.  Examples of unfavorable personnel actions provided by OSHA include firing, lay-off, blacklisting, demotion, overtime or promotion denials, reduction in pay or hours, and intimidation, among others. 

Complaint deadlines are described by OSHA, and, with respect to deadlines, depending on the statute, complaints must be filed within 30 days (CAA, CERCLA, FWPCA, SDWA, TSCA) or 90 days (AHERA) after the alleged unfavorable personnel action occurs (that is, when the employee becomes aware of the retaliatory action). 

An employee, or representative of an employee, who believes that he or she has been retaliated against in violation of these statute(s) may file a complaint with OSHA.  For example, environmental whistleblower employees suffering an adverse employment action in Beaumont, Dallas, Houston or elsewhere in Texas, may contact OSHA’s Dallas Regional Office at (972)850-4145 or an attorney to determine if a whistleblower retaliation lawsuit is ultimately appropriate under the particular circumstances and facts of the potential whistleblower retaliation claim.

The U. S. Department of Labor (DOL) at www.osha.gov provides information concerning it’s Whistleblower Protection Program.  According to a DOL Occupational Safety & Health Administration (OSHA) posting http://www.osha.gov/dep/oia/whistleblower/consumer-product-industry-employees.html , Section 219 of the Consumer Product Safety Improvement Act (CPSIA) established new retaliation protections for employees in the consumer product industry when enacted on August 14, 2008.  Under the CPSIA, a covered employer may not discharge or in any other manner retaliate against an employee because the employee provided, caused to be provided or is about to provide or cause to be provided to the employer, the federal government, or the attorney general of a state information the employee reasonably believes relates to any violation of, or any act or omission the employee reasonably believes to be a violation of the CPSA or any other Act enforced by the Consumer Product Safety Commission, or any order, rule, regulation, standard or ban under any such Acts.  Complaints must be filed within 180 days after the alleged unfavorable personnel action occurs (that is, when the employee becomes aware of the retaliatory action).  As stated in the information provided, unfavorable personnel actions may include firing, lay off, blacklisting, demotion, intimidation and disciplinary actions, among other things. 

Whether whistleblower retaliation against employees in the consumer product industry occurs in Dallas, Houston or elsewhere in Texas, whistleblower retaliation victims may contact OSHA’s Dallas Regional Office at 972-850-4145 and an attorney to determine if a retaliation lawsuit is ultimately appropriate under the particular facts and circumstances of the potential consumer product industry whistleblower claim.

In a Fact Sheet provided at http://www.osha.gov/dep/oia/whistleblower/index.html , the U. S. Department of Labor’s Occupational Safety and Health Administration (OSHA) states that truck drivers and other employees working for commercial motor carriers are protected from retaliation for reporting or engaging in activities related to certain commercial motor vehicle safety, health or security conditions.  On August 3, 2007, the Surface Transportation Assistance Act of 1982 (STAA) was amended by The Implementing Recommendations of the 9/11 Commission Act to include new rights and remedies.  According to the OSHA Fact Sheet, the STAA protects private sector drivers and other employees of commercial motor vehicle carriers from retaliation for reporting certain activities.  If a trucking company is covered by the STAA, the trucking company employer may not discharge or in any other manner retaliate against an employee for filing a complaint or participating in a proceeding related to the violation of a commercial motor vehicle safety or security rule; cooperating with certain federal safety or security investigations; or providing information in an investigation by a federal, state, or local regulatory or law enforcement agency relating to any accident or incident resulting in injury or death or property damage related to commercial motor vehicle transportation.  As stated in the OSHA Fact Sheet, complaints must be filed within 180 days after the alleged unfavorable personnel action occurs.

Further information about OSHA is available at www.osha.gov . 

Whether trucking industry related whistleblower retaliation occurs in Beaumont, Dallas, Houston, or elsewhere in Texas, trucking company employee whistleblowers may contact OSHA’s Dallas Regional Office at (972)850-4145 and an attorney to determine whether a whistleblower retaliation lawsuit is ultimately appropriate under the particular facts and circumstances of the potential whistleblower claim.

In a news release at http://www.dol.gov/opa/media/press/osha/osha20100157.htm , the U. S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced that it has ordered the Illinois Central Railroad Co. and the Chicago, Central & Pacific Railroad, both headquartered in Homewood, Illinois, to pay a former railroad employee more than $80,000 in back wages, compensatory damages and attorney fees.  According to the February 11, 2010 news release, OSHA investigated the employee’s allegation that the railroad terminated his employment in retaliation for reporting a work-related injury he sustained while performing his job.  OSHA’s investigation found that officials from both railroads ordered an investigation into the cause of the employee’s injury, which ultimately resulted in their decision to terminate his employment.  As stated in the news release, the evidence showed that the employee was in compliance with the railroads’ rules governing the reporting of work-related injuries and not at fault for his injury.  OSHA conducted the investigation under the whistleblower provisions of the Federal Rail Safety Act (FRSA) as amended in 2007.  The FRSA protects railroad carrier employees who report violations of any federal law, rule or regulation relating to railroad safety or security or who engage in other activities protected by the act.  In this regard, employers are responsible under OSHA for providing safe and healthful workplaces for their employees, and OSHA’s role is to assure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance.

For more information about OSHA visit http://www.osha.gov .  Detailed information on employee whistleblower rights can be found at http://www.osha.gov/dep/oia/whistleblower/index.html .

The Brownsville Herald reported in a December 22, 2009 article entitled Ex-bus Monitor Files Whistleblower Lawsuit Against BISD that a former Brownsville Independent School District school bus monitor filed a lawsuit against the district, alleging she was fired because she reported a bus driver for smoking tobacco on a school bus used to transport students.  As stated in the Brownsville publication’s article posted at http://www.brownsvilleherald.com/articles/monitor-106645-bisd-whistle.html , the Brownsville attorney representing the victim filed the whistleblower lawsuit, claiming the termination occurred barely a month after she reported the alleged smoking to BISD’s administrator for transportation.  According to the article, the lawsuit notes that when the former employee initially went to the administrator, she was advised not to file a written report.  The whistleblower lawsuit seeks employment reinstatement, compensation for lost wages, reinstatement of fringe benefits and seniority rights. court costs and attorney fees.

The Office of the Attorney General for the State of Texas offers information about whistleblower protections for state and local government employees at http://www.oag.state.tx .  Under Texas Government Code Section 554, a state or local governmental entity may not retaliate against employees who report violations of the law.  In this regard, the Texas Government Code states that a state or local governmental entity may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority.  A reporting public employee subjected to an adverse employment action may be entitled to relief, including injunctive relief, actual damages, court costs and attorney fees, as well as potential reinstatement.  In this regard, the Texas Government Code provides that a public employee whistleblower who seeks relief under this law must sue not later than the 90th day after the date on which the alleged violation: (1) occurred; or, (2) was discovered by the employee through reasonable diligence. 

Additional information may be obtained from the Office of the Texas Attorney General, P. O. Box 12548, Austin, Texas, 1(800)252-8011.

The U. S. Department of Transportation (”DOT”) Office of Inspector General offers information online at http://www.oig.dot.gov/recovery/whistleblower_protections.jsp concerning Section 1553 of Division A, Title XV of the American Recovery and Reinvestment Act of 2009, P.L. 111-5.  In this regard, the DOT states that the Recovery Act offers protections for certain individuals who make specified disclosures relating to Recovery Act funds.  According to the DOT posting, any non-federal employer receiving recovery funds is required to post a notice of the rights and remedies provided under this section of the Recovery Act. 

The DOT states that protected employees may include employees of non-federal employers receiving recovery funds, including state and local governments, contractors, subcontractors, grantees or professional membership organizations acting in the interest of recovery fund recipients.  Covered employees are protected against being discharged, demoted, or otherwise discriminated against as a reprisal for making a protected disclosure. 

To be protected, the disclosure must be made by the employee to the Recovery Accountablity and Transparency Board, an Inspector General, the Comptroller General, a member of Congress, a state or federal regulatory or law enforcement agency, a person with supervisory authority over the employee, a court or grand jury, or the head of a federal agency or his/her representative.  In addition, the DOT states that the disclosure must involve information that the employee believes is evidence of: (1) gross mismanagement of an agency contract or grant relating to recovery funds; (2) a gross waste of recovery funds; (3) a substantial and specific danger to public health or safety related to the implementation or use of recovery funds; or, (4) a violation of law, rule, or regulation related to an agency contract or grant awarded or issued relating to recovery funds. 

The DOT recommends that whistleblower victims of complaint reprisal involving DOT recovery funds contact the Office of Inspector General hotline.

The Occupational Safety and Health Administration (”OSHA”) provides information on whistleblower laws at www.osha.gov in the link “Whistleblower Protection.”  In addition, OSHA provides an informational Fact Sheet at http://www.osha.gov/OshDoc/data_General_Facts/whistleblower_rights.pdf which identifies general information about OSHA whistleblower protections and how to make a retaliation complaint.  In this regard, OSHA says an individual may file a complaint with OSHA if the individual’s employer retaliates against the individual by taking unfavorable personnel action against an employee engaging in protected activity relating to workplace safety and health, commercial motor carrier safety, pipeline safety, air carrier safety, nuclear safety, the environment, asbestos in schools, corporate fraud, SEC rules or regulations, railroad carrier safety or security, or public transportation agency safety or security.  Importantly, OSHA enforced whistleblower laws require that complaints be filed within a certain number of days after the alleged retaliation.  Deadlines for some complaints can be as short as 30 days and some complaints must be in writing. 

OSHA states generally that it determines whether retaliation took place by conducting an investigation which looks at certain criteria, including whether the employee engaged in protected activity; whether the employer knew about the protected activity; whether the employer took an adverse action; and, whether the protected activity was the motivating factor (or under some laws, the contributing factor) in the decision to take the adverse action against the employee.  According to OSHA’s Fact Sheet, evidence of adverse action may include, for example, termination, lay-off, blacklisting, disciplining, intimidation, pay reduction, overtime denial, and reducing hours, among others. 

Employees who believe they have been retaliated against because they exercised their legal rights as an employee may contact OSHA at their closest OSHA regional office.  In Texas, OSHA has a regional office in Dallas which may be reached by phone at (972)850-4145.  Again, further information from OSHA regarding whistleblower protections and complaint guidelines may be found in OSHA’s website.

Whether OSHA employment related whistleblower retaliation occurs in Beaumont, Dallas, Houston or elsewhere, retaliation victims may contact OSHA and an attorney to determine if a whistleblower lawsuit is ultimately appropriate under the particular circumstances and facts of the potential OSHA whistleblower claim.

In February 2009, a Travis County jury awarded a woman $900,000.00 after finding that she was fired from her job at Texas civil rights agency for complaining about discrimination against minorities at the agency, according to an article from an Austin, Texas newspaper.  See, Osborn, Claire, “Jury Awards Whistle-Blower $900,000,” Austin American-Statesman, 2/4/09, http://www.statesman.com .  As stated in the article, the jury arrived at the verdict after a six-day trial in a lawsuit which Merilou Morrison filed against the Texas Commission on Human rights and the Texas Workforce Commission (”TWC”).  The TWC Civil Rights Division enforces the Texas Commission on Human Rights Act; which has been codified into Texas Labor Code, Chapter 21.  Austin attorney Gary Bledsoe was quoted in the article as saying that “The agency that is supposed to enforce civil rights is being hit with basically a million dollar judgment for violating the very statutes they are required to enforce.”  According to the article, Morrison, who is white, was a 58 year-old investigator at the Texas Commission on Human Rights when she told agency commissioners in December 2002 that the agency’s former director was discriminating against black and Hispanic employees and applicants.  In this regard, an attorney representing Morrison in the lawsuit was quoted as saying that “Her allegations were that the agency was bringing in white employees from the outside who had no experience or interest in civil rights to be put in positions above qualified minority employees.” 

Whether unlawful retaliation for opposing or reporting employment discrimination occurs in Austin, New Braunfels, San Marcos or elsewhere, whistleblowers may contact an attorney or lawyer to determine if a whistleblower lawsuit may ultimately be appropriate under the particular circumstances and facts of the potential unlawful employment practice claim.