Whistleblower and Anti-Relation Provisions under the Sarbanes Oxley Act, Dodd-Frank Wall Street Reform and Consumer Protection Act and the Affordable Care Act

Question 1

What are the elements, defenses and damages to a Texas Whistleblower Act Claim?

Answer 1

Texas Whistleblower Act – When a state or local government unit retaliates against an employee who reports a violation of the law, the Whistleblower Act waives immunity and allows the employee to sue.

The Plaintiff was a public employee

The Plaintiff made a good-faith report that her employer or another public employee violated the law

The plaintiff made the report to an appropriate law-enforcement authority

The plaintiff was terminated, was suspended, or suffered an adverse personnel action because of the report (*90 day presumption)

B. Defenses

90 day Statute of Limitation– Employee must invoke(fair notice) employer grievance process or file suit within 90 days of adverse action (be careful of Tolling – discovery rule)

Nonretaliatory reason for action (Affirmative Defense)– Def. would have taken the adverse personnel action regardless of reported wrongdoing

Mitigation of damages

NOT A DEFENSE – reinstatement does not preclude damages

C. Damages

Economic Damages

• Past pecuniary losses (past lost wages and past lost benefits)
• Future Pecuniary Losses (future lost earnings & future lost earning capacity)

Noneconomic Damages (emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life)

DAMAGE CAP

1-100 ($50,000)

101-200 ($100,00)

201-500 ($200,000)

501+ ($250,000)

Reinstatement (or front pay)

Injunctive Relief

Attorney Fees, court costs, pre-judgment interest

NO EXEMPLARY DAMAGES