Legal Opinion on Separation and Release
I refer to your instructions with regard to a legal opinion that you sought on whether to accept or counter offer to the Separation and Release.
Brief facts
You are a victim of retaliation from Stevens Transport since July 25, 2022. You noticed that there was ongoing embezzlement, fraud, payroll fraud, HIPAA violations, and leaking of personal payroll information. Upon noticing the said illegal and/or unethical activities, you sent in a IRS Form 211 to the government, to raise your concerns. You state that although the 211 did not go through, there is a time stamp to show that you sent it, and that you are willing to re-submit it.
You also point out that you wrote to Tammy, the head of the HR, and raised up to ten complaints about Lavonda, for racism, sabotage, yelling at the boss, and emailing vendors inappropriately. You were also concerned about the paying of taxes, where the controller and the auditor held a conversation with you about the grey areas of paying or not paying certain taxes. You reported to the HR about the leaking of your payroll information. Also, on February, you saw someone deleting your work when you logged in to your computer, which issue you reported. Lastly, in March, you also reported to the controller that the AR has been over reporting, and duplicating payments.
In January, you submitted the IRS Form 211. The company then learnt that you submitted the 211. By this time, you could already see some retaliation because you had already reported the auditor and controller for the foresaid conduct. They then refused to retrieve emails that you asked for, and you had to use your outlook to restore the emails. Next, Clay Aron (the president), refused to meet with you. You also saw them deleting your work on teams. They then got rid of half of AP positions, kept the one that has been reported severally, and moved it to AR.
The company engaged in fraud by: misreporting AR by $1.5. Million. You have proof of this by the fact that Saddock, the auditor, and the owner’s son gave you the grey areas of paying or not paying taxes, and emails showing notifications of needed changes yet no change was ever made, and that the tax manager can be subpoenaed to show the misreporting, and changing of payroll and fringe benefits. They have also not paid unclaimed property tax because there have never been penalties.
Further, your co-worker’s HIPPA rights were violated when, after she fell down in her workplace, they forced a drug test on her to protect the company, before taking her to the hospital. There is also an OSHA violation when the company required people to work yet the roof was leaking. The leaks extended to personal desks.
The company has since sent you a Severance and Release agreement.
On analysis of the above facts, I find the following issues for determination:
- Whether there is a valid case for retaliation
- Whether the company committed fraud
- Whether the company committed a HIPPA violation
- Whether the Company committed an OSHA violation
- Whether the Severance and Release provides fair compensation
- Whether there is a valid case for retaliation
Both Title VII and the Texas Commission on Human Rights Act prohibit employers from retaliating against employees for engaging in protected activities, including filing a complaint. See 42 U.S.C.S. § 2000e–3(a). See also Tex. Lab.Code Ann. § 21.055 (West 2006). To establish a prima facie case under Title VII or the TCHRA, a plaintiff must show that (1) he participated in protected activity, (2) his employer took an adverse employment action against him, and (3) a causal connection existed between his protected activity and the adverse employment action. See Burger v. Cent. Apartment Mgmt., Inc., 168 F.3d 875, 878 (5th Cir.1999) (Title VII).
In your case, reporting the illegal and unethical conduct of the company, for instance, by filing the 211, was a protected activity. Upon realizing that you sent the 211, and that you raised many concerns about the unethical practices at the company, the employer started retaliating against you. For instance, they refused to retrieve emails that you asked for, and you had to use your outlook to restore the emails. Clay Aaron (the president) refused to meet with you. You also saw them deleting your work on teams. Further, they then got rid of half of AP positions, kept the one that has been reported severally, and moved it to AR. There is a direct connection between the reports and concerns you raised and the retaliatory conduct. Had you not made the reports and raised the concerns, they would not have retaliated against you. There is therefore evidence of retaliation.
- Whether the company committed fraud
“The elements of fraud are a material misrepresentation, which was false, and which was either known to be false when made or was asserted without knowledge of its truth, which was intended to be acted upon, which was relied upon, and which caused injury.” DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 688 (Tex. 1990), citing Stone v. Lawyers Title Ins. Corp., 554 S.W.2d 183, 185 (Tex. 1977).
In your case, the Company met all requirements for fraud. They misreported AR by $1.5. Million. You stated from the facts that Saddock, the auditor, and the owner’s son gave you the grey areas of paying or not paying taxes, and emails showing notifications of needed changes yet no change was ever made, and that the tax manager can be subpoenaed to show the misreporting, and changing of payroll and fringe benefits. They have also not paid unclaimed property tax because there have never been penalties. After raising your concerns about the misreporting, you were retaliated upon.
- Whether the company committed a HIPPA violation
Under HB 300, the Texas HIPAA law, a covered entity is any Texas individual, business, or organization that comes into possession of Protected Health Information. A “covered entity” within Health and Safety Code chapter 181 must comply with the privacy standards adopted under HIPAA, including the standards relating to “uses and disclosures of protected health information” and the applicable consent requirements. See Tex. Health & Safety Code Ann. 5 181.101(3). It is therefore a violation of HIPPA for a covered entity to disclose the PHI.
In your case, your co-worker’s HIPPA rights were violated when, after she fell down in her workplace, they forced a drug test on her to protect the company, before taking her to the hospital. The foregoing amounts to a HIPPA violation.
- Whether the Company committed an OSHA violation
All Texas employers are required to adhere to or exceed all OSHA health and safety regulations. See 29 U.S.C. § 654). OSHA protects an employee’s right to report workplace safety concerns and violations of safety rules, and an employer that retaliates in any way against an employee who reports safety-related problems or participates in an OSHA-related investigation is subject to enforcement action in court by DOL. See 29 U.S.C. § 660(c)(1, 2).
In your case, there is an OSHA violation when the company required people to work yet the roof was leaking. The leaks extended to personal desks.
- Whether the Severance and Release raises fair compensation
The Severance and Release cites a severance pay of $38,076, less required deductions. In consideration of said payment, the Company expects you to release them from all claims you have against them. The company also expressly denies any liability for the claims you have against them.
The severance package is therefore not fair. The foregoing outline shows how the company is liable for their illegal conduct. It is unfortunate that they are also not admitting any form of liability yet their illegal conduct is glaring and self-evident. You have facts to support your complaints against the company. Therefore, I advise that a counter offer would be appropriate in response to the Severance and Release. I have therefore drafted a response to them, making a counter offer.
Regards.
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