74R10637 PB-D By Dutton H.B. No. 622 Substitute the following for H.B. No. 622: By Oliveira C.S.H.B. No. 622 A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to protection of an employee in the private sector who 1-3 reports certain activities; providing a civil penalty. 1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-5 SECTION 1. Subtitle A, Title 2, Labor Code, is amended by 1-6 adding Chapter 23 to read as follows: 1-7 CHAPTER 23. EMPLOYMENT DISCRIMINATION FOR REPORTING 1-8 CERTAIN ACTIVITIES PROHIBITED 1-9 Sec. 23.001. DEFINITIONS. In this chapter: 1-10 (1) "Employee" means a person other than an 1-11 independent contractor who, for compensation, performs services for 1-12 an employer under a written or oral contract of hire, whether 1-13 express or implied. 1-14 (2) "Employer" means a person who employs five or more 1-15 employees. 1-16 (3) "Law" means: 1-17 (A) a state or federal statute; 1-18 (B) an ordinance of a local government; or 1-19 (C) a rule adopted under a statute or ordinance. 1-20 (4) "Report" means a written or oral employee report 1-21 made under Section 23.003. 1-22 Sec. 23.002. EXEMPTION. This chapter does not apply to an 1-23 employee of a state agency or local government subject to Chapter 1-24 554, Government Code. 2-1 Sec. 23.003. EMPLOYER RETALIATION PROHIBITED. An employer 2-2 may not suspend, demote, or terminate the employment of, or 2-3 otherwise discriminate against, an employee who in good faith 2-4 reports activities within the workplace that constitute a violation 2-5 of law to: 2-6 (1) an appropriate law enforcement authority; or 2-7 (2) a supervisor, officer, or other appropriate person 2-8 who exercises managerial authority for the employer. 2-9 Sec. 23.004. BURDEN OF PROOF; PRESUMPTION. An employee who 2-10 sues under this chapter has the burden of proof, except that if the 2-11 suspension, demotion, or termination of the employee occurs not 2-12 later than the 90th day after the date on which the employee 2-13 reports a violation of law, the suspension, demotion, or 2-14 termination is presumed, subject to rebuttal, to be because the 2-15 employee made the report. 2-16 Sec. 23.005. RELIEF AVAILABLE TO EMPLOYEE. (a) An employee 2-17 whose employment is suspended, demoted, or terminated or who is 2-18 discriminated against in violation of Section 23.003 is entitled to 2-19 sue for: 2-20 (1) injunctive relief; 2-21 (2) actual damages; 2-22 (3) court costs; and 2-23 (4) reasonable attorney's fees. 2-24 (b) In addition to relief under Subsection (a), an employee 2-25 whose employment is suspended, demoted, or terminated in violation 2-26 of this chapter is entitled to: 2-27 (1) reinstatement to the employee's former position or 3-1 a position that is comparable in terms of compensation, benefits, 3-2 and other conditions of employment; 3-3 (2) compensation for wages lost during the period of 3-4 suspension, demotion, or termination; and 3-5 (3) reinstatement of any fringe benefits and seniority 3-6 rights lost because of the suspension, demotion, or termination. 3-7 Sec. 23.006. LIMITATION PERIOD. Except as provided by 3-8 Section 23.007, an employee who seeks relief under this chapter 3-9 must sue not later than the 90th day after the date on which the 3-10 alleged violation of this chapter: 3-11 (1) occurred; or 3-12 (2) was discovered by the employee through reasonable 3-13 diligence. 3-14 Sec. 23.007. EXHAUSTION OF GRIEVANCE OR APPEAL PROCEDURES. 3-15 (a) An employee must exhaust the employer's grievance or appeal 3-16 procedures relating to suspension, demotion, or termination of 3-17 employment or unlawful discrimination, if any, before suing under 3-18 this chapter. 3-19 (b) The employee must invoke the grievance or appeal 3-20 procedures not later than the 90th day after the date on which the 3-21 alleged violation of this chapter: 3-22 (1) occurred; or 3-23 (2) was discovered by the employee through reasonable 3-24 diligence. 3-25 (c) Time used by the employee in exhausting the grievance or 3-26 appeal procedures is excluded from the period established by 3-27 Section 23.006. 4-1 (d) This section does not apply if a final decision is not 4-2 rendered before the 31st day after the date on which the employee 4-3 initiated the grievance or appeal. 4-4 Sec. 23.008. VENUE. An employee may sue under this chapter 4-5 in a district court of the county in which the employee resides. 4-6 Sec. 23.009. CIVIL PENALTY. (a) An employer who suspends, 4-7 demotes, or terminates the employment of an employee in violation 4-8 of this chapter is liable for a civil penalty not to exceed $1,000. 4-9 (b) The attorney general or an appropriate prosecuting 4-10 attorney may sue to collect a civil penalty under this section. 4-11 (c) A civil penalty collected under this section shall be 4-12 deposited in the state treasury. 4-13 Sec. 23.010. NOTICE TO EMPLOYEES. (a) Each employer shall 4-14 inform its employees of their rights under this chapter by posting 4-15 a conspicuous sign in a prominent location in the employer's 4-16 workplace. 4-17 (b) The Texas Employment Commission by rule shall prescribe 4-18 the design and content of the sign required by this section. The 4-19 commission may combine the contents of the sign required by this 4-20 section with the content of any other sign required to be posted by 4-21 an employer by the state. The commission may assess each employer 4-22 subject to this chapter a reasonable fee to cover only the costs 4-23 incurred by the commission in administering this section. 4-24 SECTION 2. This Act takes effect September 1, 1995, and 4-25 applies only to a suspension, demotion, termination, or 4-26 discriminatory action that is taken on or after that date by an 4-27 employer against an employee. 5-1 SECTION 3. The importance of this legislation and the 5-2 crowded condition of the calendars in both houses create an 5-3 emergency and an imperative public necessity that the 5-4 constitutional rule requiring bills to be read on three several 5-5 days in each house be suspended, and this rule is hereby suspended.