Texas Relaxes Requirements to Enforce Noncompetes Against Physician-Owners

Posted on August 4, 2009 by Russell Cawyer

In addition to containing reasonable restrictions as to time, geographic scope and scope of activity to be restrained, Texas imposes additional requirements for enforceable covenants not to compete with licensed physicians.  Those additional requirements include that the covenant: 

  1. not deny the physician access to a list of his patients whom he had seen or treated within one year of termination of the contract or employment;

  2. provide access to medical records of the physician's patients upon authorization of the patient and any copies of medical records for a reasonable fee as established by the Texas Medical Board;

  3. provide that any access to a list of patients or to patients' medical records after termination of the contract or employment shall not require such list or records to be provided in a format different than that by which such records are maintained except by mutual consent of the parties to the contract;

  4. provide for a buy out of the covenant by the physician at a reasonable price or, at the option of either party, as determined by a mutually agreed upon arbitrator or, in the case of an inability to agree, an arbitrator of the court whose decision shall be binding on the parties; and

  5. provide that the physician will not be prohibited from providing continuing care and treatment to a specific patient or patients during the course of an acute illness even after the contract or employment has been terminated.

This legislative session, the law was amended to clarify that these additional limitations are not required to enforce a noncompetition agreement covering a physician's business ownership interest in a licensed hospital or licensed ambulatory surgical center.  (Link here).  An ambulatory surgical center is a facility that operates primarily to provide surgical services to patients who do not require overnight hospital care.  In connection with a physician's ownership interest in those operations, only the standard requirements for enforceability in the non-physician context apply. 

The additional physician-specific requirements for covenant not to compete enforcement appear to still apply to those licensed physicians who perform management or administrative roles within hospitals and healthcare facilities. The new law become effective September 1, 2009.

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Texas Expands Employment Rights for Disabled

Posted on July 27, 2009 by Russell Cawyer

This legislative session the Texas Legislature passed, and the Governor signed, amendments that significantly expands the scope of the Texas Commission on Human Rights Act ("Act") as it relates to individuals with disabilities.

The amendment provides that:

  • The definition of "disability" is to be broadly construed to the maximum extent possible and shall include impairments that are episodic or in remission that substantially limit major life activities when active;
  • Whether an impairment substantially limits a major life activity should be made without consideration of the ameliorative effects of mitigating measures;
  • Being "regarded as having [a substantially limiting] impairment" does not include an impairment that is minor and is expected to last or actually lasts less than six months, regardless of whether the impairment limits or is perceived to limit a major life activity.
  • No claim exists for non-disabled individuals for reverse discrimination;
  • No reasonable workplace accommodation is required if the individual's disability is based solely on being regarded as having an impairment that substantially limits a major life activity.

The new law also adds a definition of "major life activity" that was missing from the Act.  Major life activity under the Act means:

caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. The term also includes the operation of a major bodily function, including, but not limited to, functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

The new law becomes effective September 1, 2009 and is not retroactive to conduct occurring prior to the effective date. 

What should Texas employers do to prepare for the new law?  Since the Texas amendments are identical to the ADA Amendments Act of 2008 (which was effective January 1, 2009), employers that have already taken steps to comply with the federal amendments may need to do very little.  For employers that have not addressed the changes made to the federal law should consider doing the following sooner rather than later:

  • Review all policies and procedures to ensure that they comply with the new laws (e.g., if there were definitions or examples of major life activities, conform the definition to the amendment; if there are instructions to consider mitigating measures in determining the severity of limitations, change those provisions to conform to the law);
  • Train your supervisors, human resources staff and employees responsibility for assessing requests for reasonable accommodation on the amendments;
  • Update Job Descriptions to ensure that capture all of the essential elements of the relevant job;
  • Focus in the interactive process --determine what the barriers are that need to be accommodated and then provide an effective accommodation that has the least adverse impact on the business.

With the state law mirroring the post-amendment ADA, there is no incentive for plaintiff-employees to file lawsuits under the ADA or in federal court as there might have been in the absence of the Texas amendments. 

 

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Texas Legislative Update 2009 (2 Minute Warning)

Posted on May 11, 2009 by Russell Cawyer

With only a few weeks left in the 2009 Texas legislative session, here is an update on the status of several bills to watch for Texas employers.   To see a bill's current status, click on the links below that are updated by the Texas legislature.

  • HB 32  Prohibiting discrimination against employees of workers' compensation nonsubscribers who sustain an injury in the course and scope of their employment.  (Update:  Left pending in subcomittee).
  • HB 183  A bill to link the Texas minimum wage to the federal minimum wage.  (Update:  No action taken in subcommittee).
  • HB 226 Prohibits an employer from discriminating against an employee that has refused to participate in an employer's charitable deduction campaign.   (Update:  No action taken in subcommittee).
  • HB 978  To amend, and greatly expand, prohibited disability discrimination under the Texas Commission on Human Rights Act. (Update:  Passed in the House).
  • SB 730 prohibits an employer from implementing policies prohibiting employees from keeping legal firearms and ammunition in locked vehicles on the employer's parking lot.  (Update:  Committee reports sent to calenders). 
  • SB 986 To extend the statute of limitations for discrimination claims alleging discrimination in the payment of compensation.  State law equivalent of the Lilly Ledbetter Fair Pay Act.  (Update:  Referred to Business and Commerce Committee). 
  • HB 615 Permitting employees with a child enrolled in a special education program and having at least one year tenure with the employer take 10 hours per year of unpaid leave to meet with certain school officials.  (Update:  Subcommittee members named).
  • HB 1005 Requiring employers to provide employees employed at least 90 days to take up to 40 hours per year unpaid leave to meet with teachers or attend to certain school events, ceremonies or meetings. The bill also contains anti-retaliation provisions.  (See also SB 649).  (Update:  Subcommittee members named).
  • HB 1057 Permitting employees with at least 6 months service to take not less than 2 weeks accrued paid leave for the birth or placement of adoption of a child.  Employees of employers that do not provide paid leave, who have insufficient paid leave or are ineligible for leave are entitled to between 2 and 6 unemployment benefits.  The bill does not mandate the creation of any leave programs but does provide a right to reinstatement for employees that utilize leave under this proposed law.  (See also SB 692).   (Update:  Subcommittee members named).
  • SB 60   Requires employers to provide for unpaid time off to employees who are the victims of certain violent crimes to attend court proceedings.  The bill also provides a civil cause of action, damages and anti-retaliation provisions for violations.  (Update:  Referred to Business and Commerce Committee). 
  • HB 538 Prohibits discrimination in employment on the basis of sexual orientation, gender identity or expression.  (Update:  Referred to State Affairs Committee).

 

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Texas Legislative Update: Bills Affecting Texas Employers

Posted on March 30, 2009 by Russell Cawyer

On March 20, 2009 I posted an entry about several leave of absence bills pending in the Texas Legislature.  Today I want to highlight a few other bills that will effect Texas employers if passed.

  • HB 32  Prohibiting discrimination against employees of workers' compensation nonsubscribers who sustain an injury in the course and scope of their employment.
  • HB 183  A bill to link the Texas minimum wage to the federal minimum wage.
  • HB 226 Prohibits an employer from discriminating against an employee that has refused to participate in an employer's charitable deduction campaign.  
  • HB 978  To amend, and greatly expand, prohibited disability discrimination under the Texas Commission on Human Rights Act.
  • SB 730 prohibits an employer from implementing policies prohibiting employees from keeping legal firearms and ammunition in locked vehicles on the employer's parking lot.
  • SB 986 To extend the statute of limitations for discrimination claims alleging discrimination in the payment of compensation.  State law equivalent of the Lilly Ledbetter Fair Pay Act.

There are also a number of immigration bills pending this session.  Michael Fox has detailed those bills on his blog.

 

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Texas Legislature Update: Employee Leaves of Absence

Posted on March 20, 2009 by Russell Cawyer

There are several pending bills in the Texas legislature that could effect the leaves of absence private employers must make available to their employees.  Some of these types of leaves have already been passed in more liberal states such as California and Massachusetts.  Pending leave of absence bills in the Texas legislature include:  

  • HB 615 Permitting employees with a child enrolled in a special education program and having at least one year tenure with the employer take 10 hours per year of unpaid leave to meet with certain school officials.
  • HB 1005 Requiring employers to provide employees employed at least 90 days to take up to 40 hours per year unpaid leave to meet with teachers or attend to certain school events, ceremonies or meetings. The bill also contains anti-retaliation provisions.  (See also SB 649)
  • HB 1057 Permitting employees with at least 6 months service to take not less than 2 weeks accrued paid leave for the birth or placement of adoption of a child.  Employees of employers that do not provide paid leave, who have insufficient paid leave or are ineligible for leave are entitled to between 2 and 6 unemployment benefits.  The bill does not mandate the creation of any leave programs but does provide a right to reinstatement for employees that utilize leave under this proposed law.  (See also SB 692)
  • SB 60   Requires employers to provide for unpaid time off to employees who are the victims of certain violent crimes to attend court proceedings.  The bill also provides a civil cause of action, damages and anti-retaliation provisions for violations.

 

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