PJC Business

PJC 107.4

E MPLOYMENT

• Tex. Lab. Code §52.041 (employee refusing to make purchases from a specific place or store or refusing to engage in dealings with a specific person or business; criminal statute); • Tex. Lab. Code § 52.051 (compliance with subpoena); • Tex. Lab. Code § 101.052 (union membership or nonmembership); • Tex. Lab. Code §§411.082–.083 (using telephone service to report in good faith a violation of occupational health or safety law); • Tex. Loc. Gov’t Code §160.006 (county employee exercising right or participating in grievance procedures established under Local Government Code); • Tex. Occ. Code §160.012 (physician reporting acts of another physician that pose threat to public welfare); see also Tex. Occ. Code §§ 160.002–.004; • 29 U.S.C. § 158(a)(1), (3), (4) (engaging in union activities); • 29 U.S.C. § 215(a)(3) (exercising rights to a minimum wage and overtime compensation); • 29 U.S.C. § 1140 (exercising rights under employee benefit plan); • 42 U.S.C. § 5851 (federal whistleblower provision). Affirmative defense. For actions accruing on or after June 15, 1995, it is an affir mative defense to a Whistleblower Act suit that the state or local governmental entity would have taken the action against the employee “based solely on information, obser vation, or evidence that is not related to the fact that the employee made a report” of a violation of law. Tex. Gov’t Code §554.004(b). In Hinds , 904 S.W.2d at 637, the supreme court noted that it expressed no opinion on whether the amended statute shifted the burden of proof. After-acquired evidence of employee misconduct. If the employer has pleaded the discovery of evidence of employee misconduct acquired only after the employee’s employment was terminated, see PJC 107.7 for the applicable question. Imputing bias of someone other than final decisionmaker to employer (“cat’s paw theory”). Texas law is unclear as to whether the “cat’s paw” analysis can be applied in the context of the Texas Whistleblower Act. For discussion on imputation of a non-decisionmaker’s bias to the employer for liability under the “cat’s paw the ory,” please see the Comments to PJC 107.6 and 107.9.

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