No sooner do I post about Texas anti-retaliation statutes and then I hear from someone who sort of has anti-retaliation protection but maybe not. Let’s be clear. Texas is an at-will state. I do not necessarily wish it to be so, but it is so. There are few exceptions here to at-will. My previous post described three solid exceptions, perhaps the only three solid exceptions (in addition to the more well-known anti-discrimination statutes). An employee emailed me about Texas Health & Safety Code Sec. 142.0093. This statute prohibits retaliation based on reporting abuse of older persons or being involved in such a report. This provision applies to home and community based support, not to nursing homes. If you look around this one section, you will see that it carries no right to file suit, no details on how one might file suit,. etc. So, it appears to be a toothless tiger. It prohibits certain conduct, but apparently provides no remedy in case the employer ignores Sec. 142.0093 and retaliates against someone for involvement with a report of abuse.
That review is not the final story. That is why lawyers exist, to look very closely and see if some right to file a lawsuit or other sort of penalty was intended by the Legislature. In fact, there is a comparable statute for abuse which occurs in nursing homes. See Health & Safety Code Sec. 242.133. Sec. 242.133 has a lot of detail about how to file suit if an employee suffers reprisal because they reported abuse. It is clear there is a right to file suit under 242.133. Sec. 242.133 applies to nursing homes.
And, what if the abuse happens in someone’s home or some non-nursing home setting? Then, such retaliation would probably fall under Sec. 142.0093 and not under Sec. 242.133. And, as I mentioned, there is no clear right to file a lawsuit under 142.0093. Perhaps, there is one, but it is not apparent. That means reporting abuse in a nursing home has some protection. But, reporting abuse in someone’s home or community type home may not be protected.
This seems unfair. But, in an at-will state, this is what happens. This is especially appalling, since both workers, nursing home and otherwise, are required to report abuse of older persons. So, someone may be required to report abuse and still suffer reprisal. It is not right that that can happen. But, it does, all too often.
But, look at the jury protection statute I referred to. When I first looked at that for a possible client in about 1991, it had no teeth, at all. Back then, a worker who was fired due to jury service came to see me and asked what he could do about it. The only remedy then was some small civil penalty. Now, you can sue for one year’s or more pay. That is still not much. But, it is a big improvement over how it stood back around 1991.