Texas Employment Law Update : Texas Employment Lawyer & Attorney : Russell D. Cawyer : Kelly Hart & Hallman Law Firm : Dallas TX Labor Updates

The Texas Legislature completed its regular session and is now in special session to address school financing legislation.  The good news for Texas employers is that the Legislature did little damage to employer's rights during the regular session.  Bills to bring Obama-styled legislation to the Texas Labor Code such as the Lilly Ledbetter Fair Pay Act failed to pass. 

One limitation on employer's rights that was passed was SB321.  SB321 prohibits employers from restricting concealed handgun license holders and others lawfully possessing firearms and ammunition from possessing those firearms or ammunition in their vehicles on company property.  You can find more on SB 321 here.

As the U.S. Congress and President continue to enact more legislation affecting employer's rights and the Texas Legislature continues to show restraint in such matters, there are greater differences between the federal and state laws that employees use to bring claims against employers.  This can have a significant effect on whether employees chose to bring claims under state or federal laws and whether they bring those claims in state or federal court.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Texas Legislature passed SB 321 and sent it to the Governor for approval.  The bill restricts public and private employers from prohibiting an employees who are concealed handgun license holders, or or otherwise lawfully possessing firearms or ammunition, from transporting or storing firearms or ammunition in the employee's privately-owned, locked car on the employer's premises. This bill does not apply to an employer owned or leased car; most school districts, chemical manufacturers and oil/gas refiners.

Because the bill prohibits employers from banning firearms in most employee's cars, it also provides employers with immunity from civil liability for injury, death, property damage or other damages arising out of an incident involving a firearm or ammunition that the employer is required to allow on its property.

The law, if signed by the Governor, is effective September 1, 2011.  You can download the text of the bill here. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Texas is known for its business/employer-friendly legal climate.  In a bill passed by the Texas Legislature, the climate just got friendlier.  HB 274, sent to the Governor for signature, requires the Supreme Court of Texas to adopt rules providing for the early dismissal of causes of action that have no basis in law or fact and provide for the shifting of litigation expenses to the losing party filing such cases.

The bill requires the Supreme Court to create procedural rules to create a state court motion to dismiss.  The motion to dismiss is to be considered without the production of evidence.  Presumably, this will be similar to Federal Rules of Civil Procedure 12(b)(6) (dismissal for failure to state a cause of action) and 12(c) (for judgment on the pleadings).  Trial courts will be required to rule on the motions within 45 days of filing and to award to prevailing parties their costs and attorney's fees.  The bill does not define "prevailing party."  The bill also provides that a trial court's granting or denial, in whole or in part, of a motion to dismiss shall award a prevailing party its costs and reasonable attorney's fees.  Unanswered is the question of "who is a prevailing party?"; "who is a prevailing party when the motion is granted in part and denied in part (i.e., both parties prevail on parts of the motion)?" and "whether a plaintiff who prevails on the motion to dismiss (i.e., the defendant's motion is denied) is a prevailing party entitled to fees and costs?"

The bill passed by the Legislature also creates appellate jurisdiction over certain appeals of controlling questions of law prior to a final judgment.  This is similar to a federal statute that provides for interlocutory appeals of controlling questions of law where a substantial ground for difference of opinion exists and the immediate appeal of the trial court's order may result in the termination of the litigation.

The bill is effective September 1, 2011 and applies to most civil actions filed on or after that date.  You can access the text of the bill here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Its getting near the end of the time to sponsor bills for consideration during this Texas legislative session.  Here are the most recently enrolled bills potentially effecting Texas employers.

HB 2609 (Guillen) (relating to employment at or by certain facilities serving the elderly or persons with disabilities)

HB 2695 (Davis) (relating to acquiring Human Health and Services Agencies to give preference to certain persons and making hiring decisions)

HB 2681 (Hartnett) (relating to the protection of trade secrets)

HB 2720 (Pitts) (relating to unpaid furloughs for state employees)

HB 2755 (Fischer) (relating to unemployment compensation, eligibility and charge backs regarding certain persons through victims or whose immediate family members or victims of sexual assault and family violence)

SB 1305 (Rodriguez) (relating to a prohibition of school districts’ retaliation against an employee for filing a grievance)

HB 2579 (Davis) (relating to relief for certain employers from penalties and sanctions under the Texas Unemployment Compensation Act)

HB 2549 (Crownover) (relating to the authority of a state employee to authorize a deduction from the employees salary or wage payment for a charitable contribution to certain agencies)

HB 2463 (Reynolds) (relating to access to service records regarding unemployment discrimination claim)

HB 2454 (Zedler) (relating to prohibiting discrimination by public institutions of higher education against faculty members and students based on the conduct of research relating to intelligent design)

HB 2450 (Jackson) (relating to the creation of an offense of employing an individual not lawfully present in the US)

SB 1268 (Whitmire) (relating to right of sheriff’s departments of certain counties to maintain local control over wages, hours and other terms of conditions of employment)

SB 1254 (Carona) (relating to the creation of the offense of employing an individual not lawfully present in the US)

HB 2227 (Coleman) (relating to an offense committed against a person because of bias or prejudice on the basis of gender identity or expression)

HB 2219 (Davis, Y) (relating to a prohibition placed on an open enrollment charter school against the employment of a person determined under certain circumstances to have engaged in misconduct that presents a risk to the health, safety and/or welfare of the student or minor)

HB 2306 (Alvarado) (relating to certain health and safety matters regarding appropriate places of employment in places that are accessible to the public)

SB 1216 (Estes) (relating to the determination of the validity and enforceability of a contract obtaining an arbitration agreement)

HB 2380 (Shelton) (relating to employment by school districts of certain persons under probationary contracts)

HB 2405 (Chisum) (relating to discrimination and restraint of trade against certain persons regulated under the Occupations Code)

SB 1001 (Carona) (relating to discrimination and restraint of trade against certain persons regulated under the Occupations Code)

SB 1042 (Haggar) (relating to the eligibility of an employees convicted of certain offenses that provide services under a contract with the public school)

HB 1888 (Miller, S) (relating to requiring employers to participate in the Federal Electronic Verification Work Authorization Program)

SB 1006 (Lucio, Ellis) (relating to unemployment compensation modernization)

HB 1827 (McClendon) (relating to the ability of a non-exempt employee to participate in certain academic extracurricular developmental activities of the employee’s child)

HB 1747 (Veasey) (relating to retaliation as unlawful employment practice)

HB 1700 (Coleman) (relating to employment of physicians by certain hospitals)

HB 1659 (Davis, Y) (relating to conditions of employee for certain sheriff departments)

HB 1565 (Coleman) (relating to the unemployment of physicians by hospital districts)

HB 1513 (Dutton) (relating to hearings on certain public school employees employment decisions before the Board of Trustees of the school district)

HB 1506 (Christian) (relating to unemployment compensation eligibility and charge backs regarding certain persons who are victims who whose immediate family members are victims of sexual assault)

HB 1447 (Dukes) (relating to the right of certain municipalities to maintain local control over wages, hours and terms and conditions of employment)

SB  761 (West) (relating to employment of physicians by certain hospitals associated with non-profit fraternal organizations)

HB 1490 (Naishtat) (relating to the accumulation of payment of sick leave for employees in certain sheriff departments)

HB 1488 (Gudeaires) (relating to examinations for hiring certain municipal fire departments)

HB 1166 (Zerwas) (relating to tobacco sensation program for certain public employees and their dependants and to assessment to a fee for certain public employees who use tobacco)

SB 314 (Zaffiri) (relating to unemployment compensation and eligibility and charge back regarding certain persons who are victims or whose immediate family members are victims of sexual assault)

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The blog has been updated with bills enrolled in the Texas Legislature the week of January 11, 2011 likely to effect Texas employers.  This week's bills include bills targeted at prohibiting workplace smoking; prohibitions against sexual orientation discrimination; payment of wages through payroll card accounts and a bill to require employers to use the federal E-verify system.  You can access all the newly enrolled bills here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

During the 82nd Texas Legislative Session (beginning today), I will track of bills affecting Texas private employers and will link to those bills here.  I intend to update this post weekly to add bills enrolled the previous week and keep a compilation of all employment-related bills here.  Check back weekly for updates.

Bills Enrolled

H.B. 68 (Martinez) (Relating to notice concerning the use of criminal history information in an employer's hiring process).

H.B. 223 (Strama) (Relating to unemployment compensation modernization).

H.B. 276 (Alonzo) (Relating to the minimum wage -would increase the state minimum wage to the greater of $6.15 or the federal minimum wage).

H.B. 387 (Turner) (Relating to the right of an employee who is a parent of a child enrolled in a special education program to time off from work to meet with certain persons affecting the eduction of the child).

S.B. 64 (Zaffirini) (Relating to the right of an employee who is victim of a crime to time off from work to attend court proceedings related to that crime).

S.B. 280 (Davis) (Relating to unlawful employment practices regarding discrimination in payment of compensation)

S.B. 314 (Zaffirini) (Relating to unemployment compensation eligibility and chargebacks regarding certain persons who are victims or whose immediate family members are victims of sexual assault). 

S.B. 321  (Hegar/Birdwill) (Relating to an employee's transportation and storage of certain firearms or ammunition while on certain property owned or controlled by the employee's employer).

H.B. 542 (Dutton) (prohibiting use of an offense dismissed through successful completion of deferred adjudication from being used to deny employment).

H.B. 672 (Christian) (Relating to initial claims under the unemployment compensation system).

S.B. 355 (Ellis); H.B. 670 (Crownover)  (Relating to the elimination of smoking in certain workplaces and public places; providing penalties).

H.B. 667 (Hochberg) (Relating to the payment of wages by an employer through an electronic transfer of funds to a payroll card account).

H.B. 665 (Villareal) (Relating to the prohibition of employment discrimination on the basis of sexual orientation or gender identity or expression).

H.B. 625 (Solomons) (Relating to notice of staff leasing services company workers' compensation claim and payment information; providing an administrative violation).

H.B. 601 (Jackson, J.) (Relating to requiring employers to participate in the federal electronic verification of work authorization program or E-verify). 

HB 1178 (Flynn) (Relating to employment protection for members of the state military forces).

HB 1219 (Miles) (Relating to the right of an employee to time off from work if the employee and/or the employee’s child is the victim of family violence or a violent felony offense).

HB 1272 (Miller) (Relating to the requiring of employees to participate in the Federal Electronic Verification of Work Authorization Program or E-Verify; establishing an unlawful employment practice and providing criminal penalties).

HB 1275 (Harless) (Relating to the suspension of certain licenses held by employers for knowing employment of persons not lawfully present in the United States).

HB 1202 (Riddle) (Relating to the creation of the offense of an employing or contracting with an unauthorized alien).

HB 1166 (Zerwas) (Relating to the tobacco sensation program for certain public employees and their dependents and to the assessment of the fee on certain public employees who use tobacco).

SB 545 (Seliger) (Relating to employment records for law enforcement officers, including procedures to correct employment termination reports; providing an administrative penalty).

HB 1057 (Anchia) (Relating to business leave time for certain municipal fire fighters and police officers).

SB 439 (Van de Putte) (Relating to the exclusion from unemployment compensation charge back for certain employers of uniform service members).

HB 954 (Lozano) (Relating to an employee’s transportation of certain firearms or ammunition while on certain property owned or controlled by employee’s employer).

HB 884 (Howard) (Relating to a limited waiver of sovereign immunity for state and local governmental entities and certain employment lawsuits filed by nurses).

HB 878 (Howard) (Relating to the participation of governmental entities and other employers in a Federal Work Authorization Verification Program; establishing an unlawful employment practice).

HB 681 (Kleinschmidt) (Relating to an employee’s transportation of certain firearms or ammunition while on certain property owned or controlled by the employee’s employer).

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Texas Legislature commences its 82nd Legislative Session on January 11, 2011.  One of the bills recently enrolled for consideration is a bill to add Lilly Ledbetter Fair Pay Act provisions to the Texas Labor Code.  Senate Bill 280 would extend the statute of limitations for allegations of discrimination in payment of compensation (or other undefined practices) to the last date that such decision was adopted; applied to the individual or when compensation affected, in whole or in part, was last made to the employee.  

S.B. 280 would aide employees who want to sue their employer.  It allows a plaintiff-employee to use the more favorable statute of limitations with respect to discriminatory compensation or other practices without having to bring the case under federal law.  Bringing a claim under federal law has consequences in that those claims are usually tried in federal courts, not state courts.  Currently, employees who want to utilize the more favorable treatment the Ledbetter Act affords generally have to bring their claims under federal law. (But see post, post). 

As several years of cases under the Ledbetter Act tell us, application of the Act can have significant (probably unintended) consequences that only disadvantage employers; not employees.  See post.  

The same bill was proposed in the 81st Legislative Session but was not passed.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

 Follow the Texas Employment Law Update on Twitter here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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).

• Email This
• Print
• Comments
• Trackbacks
• Share Link