Employers: If you are concerned about the legal minefield of using criminal records to screen out applicants, here’s a link to a pdf of an employee-side perspective (May 2013–as pictured above) on how to do it legally. You also can go to the Lawyers’ Committee for Civil Rights Under Law website for background on the by whom and why of the publication’s development. If you would prefer a Q&A on the topic straight from Uncle Sam (April 2012), then instead go to EEOC’s website. If you are a Texas-based employer, you also can give us a call with your questions.
The Texas Supreme Court has just ruled, in a case involving a University of Houston professor, that the state’s whistleblower law does not protect reports of violation of internal rules and policies. The Texas law already was narrower than the federal employee whistleblower law. This new ruling confirms that unless the rules being broken were adopted formally under a legislative grant of authority, the reporting of their violation is not protected.
Finding one fatal bullet insufficient, the Court added that the case also should be thrown out because the professor should have known better than to believe what he reported was a violation of the law. While accepting the professor actually believed he was reporting something illegal, the court found that given his familiarity with the University’s rules and his former work as an attorney, he should have known better.
Finding two fatal bullets insufficient, the Court went on to rule that he failed to meet the element of having made his reports to a “law-enforcement authority.” The University’s general counsel, the internal auditor, the CFO, and associate provost all got notice, but none had the authority to investigate or prosecute criminal violations of the law outside the university. The fact the party getting the report might have a duty to pass it on to law enforcement was found irrelevant.
(1) Texas state and local government employees who want their disclosures to be protected should make sure what is being violated is actually law, not merely internal policy.
(2) Reporting to law enforcement really does mean reporting to someone with a badge or the ability to prosecute.
(3) While there are no blatant flaws in the Court’s reasoning here, keep in mind that overall odds of winning as an employee-plaintiff before the Texas Supreme Court continue to be only slightly higher than that you will live past 105. The fact the court was not content to throw the case out on just one ground and stop there, as usual rules of judicial restraint might call for, reflects a willingness by the court to ensure employers (especially government ones) do not spend a lot of time fighting battles in court with their employees.
(4) If you are a Texas employer, you have just had another great day at the Texas Supreme Court (unless, as a taxpayer, you would rather we err on the side of encouraging government employees to blow the whistle).
Impact? More Texas state and local employees will look the other way when they see something that appears improper, knowing the chances they’ll be protected if they report it have dropped another notch.
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The National Labor Relations Authority recently distinguished acceptable at-will language from wording that may give the misimpression that even a collective bargaining agreement could not change that status. Here’s the language referenced by the NLRA press release that one of their judges found unacceptable: “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” By contrast, the language found acceptable limited who with the employer had the authority to change the at-will arrangement, rather than requiring the employee to agree (by signing handbook) it could never be modified.
“At-will” employment refers to the situation in which an employer or employee can end their relationship at any time, for any reason that is not illegal. In other words, an employer would not have to show it had a good reason for firing the employee, or even give a reason at all. Many states–including Texas–have at-will employment as the default status for the employer-employee relationship.
If you are one of the rare clients or attorneys who want to lose your case, a recent decision in a federal employee discrimination suit provides valuable direction:
1. Seriously fail to comply with the court’s rules–don’t settle for technical violations.
2. Don’t cite to specific evidence in the record when you are fighting summary judgment.
3. Avoid citing cases that apply to the particulars of your case–reference only very general principles.
4. Fail to ask to correct your errors when noted in your opponent’s reply brief.
5. Most of all, treat judges “like pigs, hunting for truffles”–don’t you dare direct them to your case’s strong points.
The case is RODRÍGUEZ-MACHADO v. SHINSEKI, ___ F.3d ___ (1st Cir. Nov. 21, 2012). Worth a read.