Jottings By An Employer's Lawyer

Monday, May 19, 2003

The Texas Legislature Back In Action, More or Less


The great Democratic departure to Oklahoma left a number of bills to die in House Committees. For House bills, "left pending in committee" means the bill is dead for this session of the legislature. House bills that got out of Committee but did not receive initial passage before the May 15 deadline, are also dead. House bills that survive are in bold.The substance of the legislation could reappear as amendments to Senate bills, but obviously time is running out. Here is the latest:

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. Left pending in committee.
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. Left pending in committee.
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. Left pending in committee.
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. Reported favorably without amendments on May 9, and sent to Calendars on May 10, but left pending on the floor.
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. Left 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. Public hearing on March 17, 2003, committee substitute considered in committee. Left pending in committee.
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. Left 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. Left 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. Public hearing on March 19, 2003. Left pending in committee.
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. Public hearing on March 19, 2003. Left pending in committee.
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. Left pending in committee.
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. Public hearing of April 1, 2003. Left pending in committee.
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. Public hearing on March 25, 2003. Left pending in committee.
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. Left 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. Left pending in committee.
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. Public hearing held on April 2, 2003. Amended in committee and passed by the House on May 10. Referred to Senate State Affairs committee.
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. Amended in Committee and reported favorably on April 30, sent to Calendars on May 6. Left pending on the floor.
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. In light of recent adoption of a living wage ordinance by Santa Fe, New Mexico, this bill may now get more attention.Referred to Economic Development. Passed the House on April 8, 2003 and sent to the Senate. Referred to Business & Commerce. Reported favorably as amended. Passed on 2nd reading and on intent calendar as of May 19.
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. Left pending in committee.
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. Left pending in committee.
H.B. 826 Yvonne Davis (D - Dallas) Requires employers to turn over any abandoned wage payments to the State Comptroller. Referred to Economic Development. Reported favorably without amendment on April 9, 2003. Passed the House on May 2 and sent to Senate. Referred to Business & Commerce.
H.B. 915 Lon Burnam (D - Fort Worth) Would set a minimum wage for state and local governments. The minimum wage would be the higher of the federal minimum wage or one calculated based on the federal poverty guidelines. Based on the 2002 guidelines, the minimum wage would be $8.70. Referred to State Affairs. Left pending in committee.
H.B. 978 Dawnna Dukes (D - Austin) Restrictions on certain business entities being the designated beneficiary of life insurance policies. Referred to Insurance. Left pending in committee.
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. Public hearing on April 8, 2003. Left pending in committee.
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. Public hearing on March 10, 2003. Left pending in committee.
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. Public hearing on March 12, 2003. Left pending in committee.
H.B. 1136 Mike Villarreal (D – San Antonio) Prohibits discrimination in employment, housing or public accommodations because of sexual orientation. Referred to State Affairs. Public hearing on April 22, 2003. Left pending in committee.
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. Left pending in committee.
H.B. 1221 Barry Telford Prevents a chargeback to an employer's account if unemployment benefits are provided because the employer was called to active duty military service after January 1, 2003. Referred to Defense Affairs & State-Federal Relations. Passed the House on April 3, 2003. Referred to Veteran Affairs and Military Installations. Reported favorably without amendments. Placed on local and uncontested calendar as of May 19, 2003.
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. Public hearing on April 23, 2003. Left pending in committee.
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. Committee substituted reported favorably on April 30. Left pending on the floor.
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. Referred to Economic Development. Passed by the House on April 3, 2003. Referred to Business and Commerce. Set for public hearing on May 20.
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. Public hearing on April 23, 2003. Left pending in committee.
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. Referred to Defense Affairs and State-Federal Relations. Public hearing on March 20, 2003. Left pending in committee.
H.B. 1496 Burt Solomons 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. Reported favorably as amended in committee. Passed by the House on May 2. Sent to Senate and referred to Business & Commerce. Reported favorably without amendments. Recommended for Local and Uncontested calendar as of May 19, 2003.
H.B. 1524 Senfronia Thompson(D - Houston) Amends the Texas Commission on Human Rights Act to make it illegal to inquire of an applicant, or of any person who knows the applicant, about their sexual orientation. Referred to State Affairs. Left pending in committee.
H.B. 1550 Bill Zedler (R - Arlington) Prohibits unions from spending any portions of dues for political purposes without obtaining a specific authorization from the union member. Referred to Economic Development. Left pending in committee.
H.B. 1645 Kevin Bailey (D - Houston) Would remove the restriction on subdivisions of the state from entering into collective bargaining agreements. Although this would not directly impact private sector employers, if it were to pass, it could improve the climate for unions in Texas. Referred to County Affairs. Left pending in committee.
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. Referred to Economic Development. Left pending in committee.
H.B. 1819 Rene Oliveira(D - Corpus Christi) Allows unemployment compensation for those who lose their jobs because of a disaster declared by the Governor. Referred to Economic Development. Passed by the House on April 3. 2003. Referred to Business & Commerce. Reported favorably without amendments. Passed by House on April 3, 2003. Sent to Senate and referred to Business & Commerce, reported favorably without amendments. Passed by Senate. Signed by Governor and effective immediately as of May 15, 2003.
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. Referred to Juvenile Justice & Family Issues. Reported favorably by Committee and sent to Local & Consent Calendar on April 11, 2003. Sent to the Senate and referred to Administration. Reported favorably without amendments. Passed by Senate on May 8, and sent to the Governor on May 12, 2003.
H.B. 2028 Aaron Pena (D - Edinburg) Although applicable only to local governments, this is noteworthy of the type of legislation that may be offered by Representative Pena, who is also an employment lawyer representing employees. This legislation establishes a Sabine Pilot cause of action for employees who are required to commit an illegal act. Unlike the common law version, it does not have a sole cause standard. It also establishes punitive damage caps tied to the size of the agency, provides for civil penalties and under certain circumstances would require an audit of a local government that has been found liable and assessed damages of more than $10,000. Referred to State Affairs. Left pending in committee.
H.B. 2170 Burt Solomons(R - Carrollton) Sunset legislation concerning the renewal of the Texas Workforce Commission. Contains a number of substantive changes. Referred to Economic Development. Public hearing on April 9, 2003. Left pending in committee.
H.B. 2347 Sid Miller (R - Stephenville) Provides that all punitive damages go to the state general fund. Referred to Civil Practices. Left pending in committee.
H.B. 2395 Frank Corte (R - San Antonio) Would substantially rewrite the common law of defamation by requiring that there be a request for correction or clarification of defamatory statements, and limiting recovery to actual damages if a correction or clarification were made in a timely manner. Referred to Civil Practices. Public hearing on April 23, 2003. Left pending in committee.
H.B. 2698 Ryan Guillen (D - Rio Grande City) Eliminates the 7 day waiting period for unemployment compensation. Referred to Economic Development. Left pending in committee.
H.B. 2933 Kino Flores (D - Mission) Transfers the Texas Commission on Human Rights to the Attorney General. Referred to Government Reform. Committee substitute reported favorably on April 23. Amended on House floor and passed on May 10. Referred to Senate Committee on Government Organization.
H.B. 2949 Reuben Hope (R - Conroe) Requires that a waiver of right to a jury trial use specific language and be in 16 point type. Part of the required statement is that the waiver is not required by law. Referred to Civil Practices. Public hearing held on April 9, 2003. Left pending in committee.
H.B. 3060 Kino Flores (D - Mission) Limits liability of employer utilizing a staff leasing company to those items for which it has contracted to pay. Correction in referral, now referred to Licensing & Administrative Procedures. Left pending in committee.
H.B. 3065 Joe Deshotel (D - Port Arthur) Would require that any jury mirror the racial and ethnic make up of the county in which it is picked. Referred to State Affairs. Left pending in committee.
H.B. 3160 Jaime Capelo (D - Corpus Christi) Would remove the restriction on subdivisions of the state from entering into collective bargaining agreements. Although this would not directly impact private sector employers, if it were to pass, it could improve the climate for unions in Texas. Referred to County Affairs. Public hearing held April 9, 2003. Left pending in committee.
H.B. 3220 Dwayne Bohac (R - Houston) Amends the workers compensation statutes to allow for a request for clarification on a determination of maximum medical improvement and related technical changes. Public hearing held April 22, 2003. Referred to Business & Industry. Left pending in committee.
H.B. 3278 Ryan Guillen (D - Rio Grande City) Creates a cause of action for employees terminated because they are served or comply with a subpoena. Referred to Business & Industry. Left pending in committee.
H.B. 3308 Jaime Capelo (D - Corpus Christi) Amends the Texas Payday Act to allow payment by direct deposit. Referred to Economic Development. Reported favorably without amendments. Passed House on May 16, 2003.
H.B. 3379 Norma Chavez (D - El Paso) Amends the Texas Commission on Human Rights Act to prohibit an English only rule, with certain exceptions. Referred to Economic Development. Left pending in committee.
H.B. 3401 Bill Zedler (R - Arlington) Repeals the little "Davis Bacon" laws which require a prevailing wage for certain governmental contracts. Referred to Economic Development. Left pending in committee.
H.B. 3430 Trey Martinez Fisher (D - San Antonio) Amends the Texas Arbitration Act to make it more difficult to require arbitration of consumer matters where less than $50,000 is involved, adds additional standards for appeal, including an additional standard of review based on the correctness of the arbitration award itself, and allowing an appeal of denial of a motion to compel even when the Federal Arbitration Act is applicable. Referred to Civil Practices. Left pending in committee.
H.B. 3462 Mike Villarreal (D - San Antonio) Amends the Texas Commission on Human Rights Act and the Workers Compensation Act to make it clear that an employee's immigration status alone does not bar him from being covered. Referred to Border and International Affairs. Public hearing held on April 2, 2003. Committee substitute reported favorably on April 2, 2003. Vote reconsidered on April 3, 2003. Considered on April 30, and failed to receive affirmative vote, left pending in committee.
H.B. 3463 Mike Villarreal (D - San Antonio) Couples a prohibition against sexual orientation or gender identity discrimination (including a prohibition against discrimination because of the gender identity or sexual orientation of those the employee associates with) with a prohibition against recognition of same sex marriages. Referred to State Affairs. Left pending in committee.
Senate
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. Reported favorably as substituted and passed the Senate on May 15, 2003.
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. Public hearing on April 30, pending in committee.
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. Passed the Senate and sent to the House. Correction in referral, now in Licensing & Administrative Procedures. Reported favorably without amendments. Sent to Local and Consent calendar on May 9, 2003.
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. Referred to State Affairs. Public hearing and reported favorably without amendments on May 1, 2003.
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. Referred to State Affairs. Reported favorably without amendments and passed on May 13. Sent to House and referred to Business & Industry.
S.B. 844 Gonzalo Barrientos (D - Austin) Would remove the restriction on local governments from entering into collective bargaining agreements. Although this would not directly impact private sector employers, if it were to pass, it could improve the climate for unions in Texas. Referred to Intergovernmental Relations.
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. Referred to Business & Commerce.
S.B. 981 Kim Brimer (R - Fort Worth) Amends the unemployment compensation statute to remove disqualification because of a labor dispute at another facility. Referred to Business & Commerce. Public hearing on April 22, 2003, pending in committee.
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. Referred to Jurisprudence.
S.B. 1190 Eddie Lucio (D - Brownsville) Allows unemployment compensation for those who lose their jobs because of a disaster declared by the Governor. Referred to Business & Commerce.
S.B. 1298 Frank Madla (D - San Antonio) Requires hospitals to adopt policies to improve the workplace for nurses and other employees including more use of ergonomics and plans for workplace violence. Referred to Health & Human Services.
S.B. 1333 Gonzalo Barrientos (D - Austin) Transfers the Texas Commission on Human Rights to the Attorney General. Referred to Government Organization.
S.B. 1478 Royce West (D - Dallas) Amends the whistleblower statute applicable to public entities by permitting a report to be made not only to an appropriate law enforcement authority but also an employee within the employing governmental agency who has the authority to act on the complaint. Substitutes an amount of ten times the annual salary (not including overtime) of the employee for the existing damage caps which are tied to the size of the governmental entity. Referred to Jurisprudence. Public hearing on April 23, reported favorably as amended.
S.B. 1648 Kyle Janek (R - Houston) Amends TCHRA to start time for filing suit run from receipt of right to sue notice from either the EEOC or the TCHR. Referred to Jurisprudence.
S.B. 1740 Rodney Ellis (D - Houston) Requires a jury to have the same racial and ethnic composition as the county in which it is selected. Referred to Jurisprudence.
S.B. 1806 Chris Harris (R - Arlington) Provides penalties for an employer failing to comply with a national medical support order. Referred to Jurisprudence. Committee substitute reported favorably on April 14, 2003. Recommended for local & uncontested calendar.


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