Jottings By An Employer's Lawyer

Thursday, January 23, 2003

They're Back! 78th Texas Legislature Is In Session

The first couple of weeks have been taken up with formalities of organization, inaugurations, and probably NOT thinking about the huge budget deficit facing the lawmakers. But even among all the fun, some of the law makers have managed to author more than a few bills which would impact employment practices throughout Texas. For the first batch, check my earlier post.

Since then, here are the new offerings, at least through yesterday:

H.R. 181 Jessica Farrar (D - Houston) Would control the status of deferred adjudications under certain circumstances. It actually passed last session, but was vetoed by Governor Perry. Here is a description of the legislation from Representative Farrar's biography:
She unanimously passed legislation that was subsequently vetoed by Governor Perry that would clear the criminal records of persons utilizing the deferred adjudication process. This process is utilized for certain defendants such as first-time minor offenses that some youth find themselves committing under a lapse of judgement. If a person completed all terms of the deferred adjudication and maintained a clean record for five years on a misdemeanor and ten years on a felony charge, then their records would have been cleared so that person could pursue housing and job opportunities without fear that their applications would be rejected because of a previous criminal charge. At the present time, qualified defendants enter a plea of deferred adjudication thinking that their records will be clear upon completion of the terms of the court, but soon find this not to be true when their housing or job applications are rejected because of the previous charge. Such persons can currently have their records expunged, but only through a complicated and costly process that most defendants are unable to pursue. When a defendant is unable to obtain employment, such legal costs remain prohibitative. She has re-filed this legislation as H.B. 181 for the upcoming 78th Legislative Session.

H.R. 281 Paul Moreno D - El Paso This is not technically an employment bill, but likely to be one of the most talked about, contested bills of this legislature, at least of those non-financial pieces of legislation. This would make it a misdemeanor, subject to a $100 fine for using a mobile phone when driving, unless the car is stopped, or it is operated without the use of either hand. Since HR folks (and their lawyers) tend to need to talk, this one will be one a lot of us will be watching.

H.R. 328 Warren Chisum R - Pampa An attempt to allow employers the opportunity to obtain information from applicants about prior workers compensation claims and injuries. The legislation modifies the TCHRA, but unfortunately can't shield employers from the Americans with Disabilities Act.

H.R. 355 and H.R. 356 Harold Dutton D - Houston These are two education leave bills, similar to some of the additions that have been suggested for the FMLA. One would give time off to meet with teachers, counselors or principals; the other to attend certain school activities. They would also create new causes of actions against employers.

H.R. 359 and H.R. 371 Harold Dutton D - Houston. Attempt to limit the use of mandatory arbitration. The first would prohibit arbitration of TCHR or Title VII claims, the 2nd would prohibit mandatory arbitration until and employee had worked for an employer for at least 90 days. If the agreement were covered by the Federal Arbitration Act, these restrictions would be pre-empted. Most, but not necessarily all employment relationships will be covered by the FAA.

H.R. 379 Harold Dutton D - Houston. Would require employers to allow employees to review their personnel files. Similar legislation has been offered for several sessions. It does have have some intrinsic appeal, so is one that could gain some traction. This would make a failure to comply by the employer an unfair employment practice, which is treated like a violation of the TCHRA.

Amazingly, there have been no new Senate bills filed relating to employer's practices since the first report in mid December.

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