Employees Can "Report" Violations of Law Even if in Doubt
Monday, March 5, 2007
Contributed by: David W. Willett
Section 242.133 of the Health and Safety Code gives employees of health care institutions a cause of action if the health care institution suspends or terminates the employee "for reporting to the employee's supervisor, an administrator of the institution, a state regulatory agency, or a law enforcement agency a violation of law."
In Town Hall Estates Whitney, Inc. v. Winters, --S.W.3d--, 2007 WL 416325 (Tex. App.-Waco 2007, n.p.h.), the employee-plaintiff reported to her supervisors a nursing home resident's allegation of sexual abuse by another employee. The evidence showed that the employee-plaintiff had doubts about the truth of the resident's allegations.
One of the major issues addressed by the court was whether the employee-plaintiff made a "report" within the meaning of section 242.133 of the Health and Safety Code. The nursing home defendants first argued that the employee-plaintiff did not make a "report" because she did not believe the resident's allegation of sexual abuse. The Waco Court rejected this argument. Specifically, the court held that the language of the statute does not support a requirement that an employee subjectively believe the allegation of abuse to true. The court reasoned:
It would appear to be unjust or absurd for the Legislature (1) to impose a legal duty on a nursing home employee to report abuse or neglect; (2) to provide a cause of action for retaliation for reporting a violation of law (including abuse or neglect), but only if the employee subjectively believed there had been a violation of law; and (3) to omit from the statute such a subjective belief requirement.
In other words, the court held that an employee need not subjectively believe that a violation of law actually occurred in order to make a "report" within the meaning of section 242.133 of the Health and Safety Code.
Second, the nursing home defendants argued that the employee-plaintiff did not comply with Chapter 242's reporting requirements (Tex. Health & Safety Code sec. 243.122-.125). The Waco Court also dismissed this argument. Again, the court reasoned that the language of the statute makes no reference to the reporting requirements in sections 242.122-.125. Further, the court reasoned "[i]n creating the retaliation cause of action, the Legislature could have easily required the employee to have reported 'in accordance with this subchapter,' but it did not."
In short, the Town Hall Court held that an employee neither has to believe that a violation of law has actually occurred nor does she have to comply with any reporting requirements in order to make a "report" under section 242.133.
This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.
