Jottings By An Employer's Lawyer

Monday, March 10, 2003

Weekly Update of Action in the 78th Texas Legislature

A weekly update on employment related bills of general interest. As the session momentum begins to build there was an outpouring of proposed legislation, with over 700 bills being submitted this past week. Relatively few of them involved general employment practices. There are some that propose simple, but very helpful amendments, which may stand more of a chance for serious consideration than some of the more complex proposals. Actions taken this week are in bold.

House of Representatives
H.B. 50 Sylvester Turner (D – Houston) Mandatory leave for employees to attend school conferences, and penalties against retaliation for exercising that right. Referred to Economic Development.
H.B. 105 Norma Chavez (D - El Paso) Provides for unemployment benefits, without charge to an employer's account, if an employee is forced to leave employment because of domestic violence. Referred to Economic Development.
H.B. 126 Lon Burnam (D - Fort Worth) Requires parity for mental illness in disability insurance policies sold in state of Texas. Referred to Insurance.
H.B. 152 Ron Wilson (D – Houston) Limits an employer's ability to obtain so called 'dead peasants insurance,' where an employer obtains a policy on lower paid employees with itself as a beneficiary. Referred to Insurance. Scheduled for public hearing on March 10, 2003.
H.J.R. 18 Suzanna Hupp (R – Lampasas) A constitutional amendment to grant a broad right of privacy. In California, a similar constitutional amendment was used as a basis for finding the constitutional right of privacy extended to non-government employers. Referred to State Affairs. Testimony taken on March 3, 2003. Still pending in committee.
H.B. 181 Jessica Farrar (D – Houston) Allows an individual who receives deferred adjudication to legally deny the arrest and prosecution, except for a subsequent criminal prosecution. This would impact information employers are able to obtain when hiring. The bill passed last legislative session, but was vetoed by Governor Perry. Correction of referral, now referred to Law Enforcement.
H.B. 281 Paul Moreno (D – El Paso) This is not technically an employment bill, but is likely to be one of the most talked about and contested non-financial bills of this session. It would make it a misdemeanor (punishable by a $100 fine) to talk on a mobile phone when driving, unless the car is stopped or the phone is operated without the use of either hand. Referred to State Affairs. Testimony taken on March 3, 2003, still pending in committee.
H.B. 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 Texas Commission on Human Rights Act and the Texas Workers Compensation Act, but unfortunately can not shield employers from the Americans with Disabilities Act which prohibits such inquiries. Referred to Business & Industry. Testimony taken on March 4, 2003 still pending in committee.
H.B. 355 and H.B. 356 Harold Dutton (D – Houston) These are two education leave bills, similar to some of the amendments that have been suggested for the federal Family Medical Leave Act. One would require employers to give time off to employees to meet with teachers, counselors or principals; the other to attend certain school activities. The bills also create new causes of actions against employers for refusing to provide the time off. Referred to Economic Development.
H.B. 359 and H.B. 371 Harold Dutton (D – Houston) These two bills attempt to limit the use of mandatory arbitration. The first would prohibit arbitration of Texas Commission on Human Rights Act or Title VII claims, the second would prohibit mandatory arbitration until an employee had worked for an employer for at least 90 days. Even if these bills were to pass, 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. Referred to Economic Development.
H.B. 379 Harold Dutton (D – Houston) Requires employers to allow employees to review their personnel files. Similar legislation has been offered for several sessions. It would make failure to comply by the employer an unfair employment practice, which is treated as a violation of the Texas Commission on Human Rights Act. Referred to State Affairs.
H.B. 570 Fred Brown (R –Bryan) For non-subscribers to workers compensation, the bill would cap liability at $250,000 for work place injuries to employees. In order to qualify for the cap, the employer must have insurance meeting certain limits. Referred to Business & Industry.
H.B. 574 Jessica Farrar (D – Houston) Amends the Texas Commission on Human Rights Act to prohibit discrimination against individuals on the basis of their sexual orientation or gender identity. It would also protect anyone from being treated differently because of the sexual identity of individuals with whom the employee associates. Referred to Business & Industry.
H.B. 624 Jose Menendez (D - San Antonio). Basically a refined version of Representative Moreno's H.B. 281 which prohibits use of mobile phones while driving. This version has more definitions, some exceptions for emergency calls, and a range of fines that increases if the violation occurs in a school zone. Referred to State Affairs. Testimony taken on March 3, 2003, still pending in committee.
H.B. 643 Arlene Wohlgemuth (R - Burleson) A technical amendment to the punitive damages cap. Currently, the cap is not applicable where the defendant engages in certain criminal activity. The amendment would require a conviction before the cap would not be applicable. Under the current law, plaintiffs are able to argue that certain conduct should be outside the cap because it meets the literal language of the current statute, even though there has been no criminal prosecution. Referred to Civil Practices.
H.B. 705 Burt Solomons (R - Carrollton) Provides a defense against a claim of negligent hiring for employers whose employees enter another's home for purposes of repairs or delivery of goods. The defense would only be available if the employer obtained a criminal record from the Department of Public Safety. The bill gives the employer the right to have that access. Referred to Civil Practices.
H.B. 772 Dawnna Dukes (D - Austin) Similar to H.B.105, would allow an employee to quit a job if advised to by a law enforcement officer, a licensed medical practitioner or a licensed counselor because of domestic violence or stalking and still receive unemployment benefits. The employer's account would not be charged. Referred to Economic Development.
H.B. 804 Charlie Geren (R - Fort Worth) Amends Texas minimum wage law to pre-empt any city ordinance setting a minimum wage. It does not apply to government contracts or tax-abatement agreements. Referred to Economic Development. Set for public hearing on March 12, 2003. In light of recent adoption of a living wage ordinance by Santa Fe, New Mexico, this bill may now get more attention.
H.B. 810 Eddie Rodriguez (D - Austin) Prohibits discrimination by state agencies on the basis of sexual orientation or gender identity. Referred to State Affairs.
H.B. 812 Roberto Gutierrez (D - McAllen) Provides that 75% of any award of punitive damage award will go to the Permanent University Fund. The plaintiff would receive 15% and plaintiff's attorney 10%, notwithstanding any other contractual agreement. Referred to Civil Practices.
H.B. 826 Yvonne Davis (D -145,408 Dallas) Requires employers to turn over any abandoned wage payments to the State Comptroller. Referred to Economic Development.
H.B. 978 Dawnna Dukes (D - Austin) Restrictions on certain business entities being the designated beneficiary of life insurance policies. Referred to Insurance.
H.B. 995 Ken Mercer (R – San Antonio). Expands the public whistle blower statute to also include protection from retaliation for reporting a waste of funds to an appropriate governmental agency. Referred to Government Reform.
H.B. 1018 Mike Villarreal (D – San Antonio) Would provide a preference by state and local governments for vendors who were certified as family friendly by the Texas Workforce Commission for providing employee dependent care benefits. Set for public hearing on March 10, 2003.
H.B. 1045 Joe Deshotel (D – Port Arthur) Creates an alternative base period for computation of unemployment compensation benefits to remove a period of extended medical disability. Referred to Economic Development. Set for public hearing on March 12, 2003.
H.B. 1136 Mike Villarreal (D – San Antonio) Prohibits discrimination in employment, housing or public accommodations because of sexual orientation. Referred to State Affairs.
H.B. 1142 Glenn Lewis (D – Fort Worth) Requires health insurance plans to provide for an annual physical with certain basic lab tests. Referred to Insurance.
H.B. 1244 Senfronia Thompson (D - Houston) A repackaged version of comparable worth. Prohibits discrimination in compensation by paying less to a person in a protected class for a person in an equivalent jobs under similar conditions. The amount of litigation and control of the workplace that this would create is almost unimaginable. It was a bad idea when first introduced and has gotten no better over time. Referred to Economic Development.
H.B. 1245 Terri Hodge (D - Dallas) Amends the unemployment statute to allow workers who are locked out by their employer, or who are idled because of a work stoppage at another location to receive unemployment compensation benefits. Referred to Economic Development.
H.B. 1282 Brian McCall (R - Plano) This is not an employment bill, but an anti-spam one, so certainly one worthy of watching from at least my mailbox's perspective. Set for public hearing on March 12, 2003.
H.B.1359 Aaron Pena (D - Edinburgh) Would make it more difficult to offer evidence of past sexual conduct in civil related cases by adopting the standards and procedures of Rule 412 of the Federal Rules of Evidence. This is the first employment related bill offered by Representative Pena, who in his day job, is the leading plaintiff's employment lawyer in the Valley. Referred to Civil Practices.
H.B. 1360 Aaron Pena (D - Edinburgh) Amends existing state law with respect to penalties for discrimination against national guard personnel, by removing the current cap on damages which was limited to six months pay, adding punitive damages and utilizing the caps applicable to TCHR claims based on number of employees, with a maximum of $300,000 for compensatory and punitive damages by employers with more than 500 employees. An interesting choice, since it will be hard to argue against increasing penalties against employers who discriminate against those who might be called to serve in the Iraq conflict. Referred to Defense Affairs and State-Federal Relations.
H.B. 1496 Burt Solomons (R - Carrollton) Establishes a study to review and propose legislation to strengthen the anti-abuse provisions of the unemployment compensation laws, including increasing collections of overpayments. Referred to Economic Development.
H.B. 1684 Beverly Woolley (R – Houston). Amends the TCHRA so that the issuance of a right to sue letter by the EEOC would also trigger the 60 day deadline for filing a lawsuit under the TCHRA. This would be extremely helpful in making sure that lawsuits are timely filed and eliminate a major flaw in the current situation.
H. B. 2001 Harold Dutton (D - Houston) Adds a federal medical support notice to the requirement that employer’s must follow in withholding from their employee’s.

S.B. 33 Judy Zaffirini (D – Laredo) Establishes a right to leave to attend certain school functions for employees. Referred to Business & Commerce.
S.B. 61 Judy Zaffirini (D – Laredo) Modifies the existing law on criminal background checks for nursing home employees and applicants. Referred to Health and Human Services.
S.B.137 Rodney Ellis – (D- Houston) Prevents employers from obtaining 'dead peasant's insurance.' Referred to State Affairs.
S.B. 328 Royce West (D - Dallas) Requires an arbitrator and/or arbitration services provider to file a public disclosure within 30 days of the entry of the award by the arbitrator. Failure to do so could result in a fine, and multiple failures could result in the arbitrator being barred from court ordered arbitrations and being listed on a public list maintained by the Office of Court Administration. The disclosure would require the names of the parties, the general nature of the claim and the relief sought, the award by the arbitrator and the costs charged by the arbitrator and the arbitration services provider. It is designed to be a supplement to existing arbitration laws, including the Federal Arbitration Act. Referred to Jurisprudence.
S.B. 374 Tommy Williams (R - Woodlands). Limits liability of employer utilizing a staff leasing company to those items for which it has contracted to pay. Referred to Business & Commerce. Committee Substitute reported out of committee favorably on March 5, 2003 and recommended for Local and Uncontested Calendar.
S.B. 390 Rodney Ellis (D - Houston) The first Senate bill to prohibit use of a cell phone while driving. Referred to Criminal Justice.
S.B. 819 Troy Fraser (R - Horseshoe Bay) Amend workers compensation statute so insurance carrier can challenge compensability even if it misses the seven day deadline for beginning benefits or contesting the injury. Although able to challenge compensability, missing the deadline would constitute an administrative violation.
S.B. 820 Troy Fraser (R - Horseshoe Bay) Amends workers compensation statute to make first impairment rating final if an objection is not filed within 90 days.
S.B. 956 Robert Duncan (R - Lubbock) Directs the state auditor to study ways of improving collection of overpayments of unemployment compensation and for the Texas Workforce Commission to implement those methods.
S.B. 981 Kim Brimer (R - Fort Worth) Amends the unemployment compensation statute to remove disqualification because of a labor dispute at another facility.
S.B. 997 Royce West (D - Dallas) Requires an arbitrator to provide certain information about an arbitration, including a copy of the award, to the Office of Court Administration within 31 days of the award. Would allow parties to request that the record be sealed under the same standard applicable to court documents.

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