Employment retaliation against nurses

Texas Laws Protect Nurses from Wrongful Termination and Other Adverse Employment Actions

Remember that nurses have rights! Nurses are obligated to protect patients and report potential violations or misconduct. A nurse’s license could be at risk if he/she fails to act appropriately. The Texas legislature has created laws to protect nurses in their employment to discourage retaliation for their compliance with the Nursing Practice Act and other laws. The following are a few key laws that all nurses should be aware of:

Section 301.352 of the Texas Occupations Code prevents an employer from suspending, terminating, or otherwise disciplining, discriminating against, or retaliating against a nurse who refuses to engage in an act/omission relating to patient care that would result in a violation of the Nurse Practices Act or a board rule (as long as the nurse notifies the person at the time of refusal the reason for the refusal).

Section 301.413 of the Texas Occupations Code prevents an employer from suspending, terminating, or otherwise disciplining or retaliating a nurse for: a) making a good faith report under the Nurse Practices Act; b) requesting a nursing peer review committee determination; c) refusing to engage in conduct under 301.352; or d) advising another nurse of any of these rights.

Section 301.4025 of the Texas Occupations Code allows for optional reporting by a nurse. Specifically, a nurse may report to his/her employer or another appropriate entity any situation that the nurse has reasonable cause to believe exposes a patient to substantial risk of harm as a result of a failure to provide patient care that conforms to minimum standards of acceptable and prevailing professional practice or statutory, regulatory, or accreditation standards.

A violation of any of the above three sections could result in significant liability to an employer, specifically:

The greater of either a) actual damages, including mental anguish, or b) $5,000;
Compensation for lost wages during any period of suspension or termination;
Reinstatement (or three month’s severance pay);
Exemplary (punitive) damages; and
Court costs and attorney’s fees.

Section 261.110 of the Texas Family Code prevents an employer from suspending, terminating, or otherwise discriminating against a nurse (or other professional) who reports child abuse or neglect. A violation of this section could also result in substantial damages, including actual damages, exemplary damages (for a private employer), and court costs and attorney’s fees.

Section 161.134 of the Texas Health and Safety Code prevents a hospital from suspending, terminating, disciplining, or otherwise discriminating against an employee for reporting a violation of law or agency rule. A violation of this section could result in actual damages, mental anguish damages, exemplary damages, attorney’s fees, compensation for lost wages and benefits, and reinstatement (or front pay).

As shown by the above laws, nurses have significant protection to ensure compliance with their licenses and really to protect patients. If you are a nurse and believe you may have been treated inappropriately by your employer based on a good faith report or complaint, contact Sud Law P.C. to evaluate your rights.

Disclaimer

This article is for general information purposes and is not to be construed as specific legal advice. Every situation is different and only a qualified attorney can evaluate your specific circumstances.

Common Issues:

Non-compete agreements

Many employers require employees to sign non-compete and non-solicitation agreements, and often try to enforce them after an employee leaves. However, these agreements may be challenged in court, as they could be found unenforceable depending on the geography, time period, and scope of the limitations. Mr. Sud can evaluate such agreements, advise you accordingly, and represent you in court.

Overtime and Wage Claims

The Fair Labor Standards Act (FLSA) is a federal statute that allows for appropriate compensation. Most employees are required to be paid an overtime rate for working over 40 hours per week. Several exemptions exist though, allowing for a fixed salary regardless of the number of hours worked. However, employers may misclassify such employees or otherwise not comply with the salary requirements. For example, if you are doing the work of an hourly employee, but being paid a fixed salary, you may be entitled to overtime compensation. Or, even if you should be exempt, if your employer docks your pay for a partial day absence, you may be entitled to overtime for weeks in which you work over 40 hours. Also, tipped employees (such as waiters/waitresses) are entitled to many protections. More information can be found here: https://sudemploymentlaw.com/overtime-pay/

Age, Disability, Race, Sex Discrimination and Retaliation

Mr. Sud frequently litigates claims of age, disability, race, and sex discrimination (as well as all other forms of illegal discrimination), including failure to accommodate disabilities, and retaliation. Employers often tend to make adverse employment decisions based on inappropriate assumptions concerning certain demographics, and employees should fight for their rights if they are treated illegally. Also, employers are not permitted to retaliate against employees for making good faith protected complaints.

Severance Agreements

Employers often provide severance agreements when terminating or laying-off employees. These agreements provide a monetary incentive in exchange for agreeing not to sue the employer. It is important to consult with an employment attorney who has experience evaluating severance agreements and determining whether your rights may have been violated. It is possible that you may have a good claim against your employer, thus putting you in a favorable situation to negotiate a better severance. Mr. Sud has written, evaluated, and negotiated countless severance agreements on behalf of both employees and employers. Contact Mr. Sud to help you evaluate a possible severance.

Protection of nurses in Texas

Nurses and other health care professionals have additional rights provided by state law, that protect them from several forms of retaliation. Mr. Sud has represented several nurses throughout the state. More information about these laws can be found here: https://sudemploymentlaw.com/nurses-wrongful-termination-retaliation-employment/

Pregnancy Discrimination in the Workplace

Both federal law and Texas law prevent sex discrimination against employees. The Pregnancy Discrimination Act of 1978 modified these laws to confirm that sex discrimination includes discrimination on the basis of pregnancy. Most employers are well aware that they should not terminate or otherwise discriminate against female employees on account of their pregnancy or birth of a child. However, employers often still violate the law, even unwittingly or with a perception that they are acting with good intentions. For example, an employer should not prevent a pregnant employee from working in a particular job just because it assumes that job may not be “safe” or "too stressful" for the woman or her unborn child. Also, an employer making stereotypical assumptions about a new mother’s alleged need to care for her child rather than work, or not understanding that she can both work and care for her child, could also support a pregnancy discrimination claim. As a specific example, a federal appellate court ruled that a statement from a manager that an employee would be “happier at home with her children” may be considered direct evidence of unlawful discrimination. And one judge recently confirmed that a manager stating women “should stay home, be mothers, and take care of their children” gives rise to an inference of unlawful discrimination.

Certified in Labor and Employment Law by the Texas Board of Legal Specialization.

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