Reporting suspected child abuse is one of the most unpleasant, but important, responsibilities of teachers and administrators.  Our child abuse laws are one of the few instances in which the failure to act might be a crime.  Ever since we’ve had child abuse laws we’ve also had laws designed to protect the person who makes the report, as long as they are acting in good faith. 

HB 621 strengthens those protections.  It amends the Family Code to permit a lawsuit for an injunction and/or damages if a “professional” is punished for reporting—in good faith—suspected abuse or neglect.  We have long had provisions in the Family Code along these lines, but up until now they applied only if the person who reported possible abuse was suspended, terminated or “otherwise discriminated” against. 

The new law, which goes into effect September 1, adds a more specific category of unlawful retaliation: an “adverse employment action.”  Thus a principal who takes “adverse employment action” against the nurse or teacher who, in good faith, reported abuse, may be looking at some serious legal concerns.  Here is the new law’s definition of this important term:

“Adverse employment action” means an action that affects an employee’s compensation, promotion, transfer, work assignment, or performance evaluation, or any other employment action that would dissuade a reasonable employee from making or supporting a report of abuse or neglect under Section 261.101. 

Plaintiffs in cases based on this statute will assert that a change in “work assignment” is an “adverse employment action” even when there is no cut in pay or status. They will also argue that any negative mark in the performance evaluation is “adverse” and illegal if done in retaliation for the good faith report of possible abuse or neglect.

Remember that reports of child abuse are to be made when there is “reason to suspect.”  We are obligated to make that report long before we are certain that it occurred. Thus reports of abuse might turn out to be wrong.   Moreover, the definitions of abuse and neglect leave room for reasonable people to interpret them differently.  Just because a teacher reports abuse when you think it was unnecessary does not mean that the teacher is lacking “good faith.” So let’s be sure that all “adverse” employment actions are based on job related concerns, independent of any good faith child abuse reporting.

DAWG BONE: AS WE OFTEN REPEAT: DOCUMENT, DOCUMENT, DOCUMENT. 

Tomorrow: Trouble in Serenity Falls!