By Dutton H.B. No. 622
74R1020 PB-D
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 one 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 or terminate the employment of, or otherwise
2-3 discriminate against, an employee who in good faith reports
2-4 activities within the workplace that constitute a violation of law
2-5 or would otherwise have a probable adverse effect on the public
2-6 resulting in physical harm or a hazard to public health or safety
2-7 to:
2-8 (1) an appropriate law enforcement authority; or
2-9 (2) a supervisor, officer, or other appropriate person
2-10 who exercises managerial authority for the employer.
2-11 Sec. 23.004. GOOD FAITH. To establish good faith for
2-12 purposes of this chapter, an employee must show that the employee:
2-13 (1) reported the activities because of a sincere
2-14 desire to further the public good, rather than because of malice,
2-15 jealousy, the hope of personal financial gain, or an analogous
2-16 motive; and
2-17 (2) had reasonable cause to believe that the
2-18 activities violated the law or would have a probable adverse effect
2-19 on the public.
2-20 Sec. 23.005. BURDEN OF PROOF; PRESUMPTION. (a) An employee
2-21 who sues under this chapter must prove by the preponderance of the
2-22 evidence that the principal motivation for the employer retaliation
2-23 was the employee's report.
2-24 (b) The report must be the principal reason for the
2-25 employer's retaliation. The employee has the burden of showing
2-26 that the employer had knowledge of the report before the
2-27 retaliatory act occurred.
3-1 (c) If the suspension or termination of the employee occurs
3-2 not later than the 90th day after the date on which the employee
3-3 made the report, the suspension or termination is presumed, subject
3-4 to rebuttal, to be because the employee made the report. To rebut
3-5 the presumption, the employer must establish that the suspension or
3-6 termination was made for legitimate reasons unconnected with the
3-7 employee's report.
3-8 Sec. 23.006. RELIEF AVAILABLE TO EMPLOYEE. (a) An employee
3-9 whose employment is suspended or terminated or who is discriminated
3-10 against in violation of Section 23.003 is entitled to sue for:
3-11 (1) injunctive relief;
3-12 (2) actual damages;
3-13 (3) court costs; and
3-14 (4) reasonable attorney's fees.
3-15 (b) In addition to relief under Subsection (a), an employee
3-16 whose employment is suspended or terminated in violation of this
3-17 chapter is entitled to:
3-18 (1) reinstatement to the employee's former position or
3-19 a position that is comparable in terms of compensation, benefits,
3-20 and other conditions of employment;
3-21 (2) compensation for wages lost during the period of
3-22 suspension or termination; and
3-23 (3) reinstatement of any fringe benefits and seniority
3-24 rights lost because of the suspension or termination.
3-25 Sec. 23.007. LIMITATION PERIOD. Except as provided by
3-26 Section 23.008, an employee who seeks relief under this chapter
3-27 must sue not later than the 90th day after the date on which the
4-1 alleged violation of this chapter:
4-2 (1) occurred; or
4-3 (2) was discovered by the employee through reasonable
4-4 diligence.
4-5 Sec. 23.008. EXHAUSTION OF GRIEVANCE OR APPEAL PROCEDURES.
4-6 (a) An employee must exhaust the employer's grievance or appeal
4-7 procedures relating to suspension or termination of employment or
4-8 unlawful discrimination, if any, before suing under this chapter.
4-9 (b) The employee must invoke the grievance or appeal
4-10 procedures not later than the 90th day after the date on which the
4-11 alleged violation of this chapter:
4-12 (1) occurred; or
4-13 (2) was discovered by the employee through reasonable
4-14 diligence.
4-15 (c) Time used by the employee in exhausting the grievance or
4-16 appeal procedures is excluded from the period established by
4-17 Section 23.007.
4-18 (d) This section does not apply if a final decision is not
4-19 rendered before the 31st day after the date on which the employee
4-20 initiated the grievance or appeal.
4-21 Sec. 23.009. VENUE. An employee may sue under this chapter
4-22 in a district court of the county in which the employee resides.
4-23 Sec. 23.010. CIVIL PENALTY. (a) An employer who suspends
4-24 or terminates the employment of an employee in violation of this
4-25 chapter is liable for a civil penalty not to exceed $1,000.
4-26 (b) The attorney general or an appropriate prosecuting
4-27 attorney may sue to collect a civil penalty under this section.
5-1 (c) A civil penalty collected under this section shall be
5-2 deposited in the state treasury.
5-3 Sec. 23.011. NOTICE TO EMPLOYEES. (a) Each employer shall
5-4 inform its employees of their rights under this chapter by posting
5-5 a conspicuous sign in a prominent location in the employer's
5-6 workplace.
5-7 (b) The Texas Employment Commission by rule shall prescribe
5-8 the design and content of the sign required by this section.
5-9 SECTION 2. This Act takes effect September 1, 1995, and
5-10 applies only to a suspension, termination, or discriminatory action
5-11 that is taken on or after that date by an employer against an
5-12 employee.
5-13 SECTION 3. The importance of this legislation and the
5-14 crowded condition of the calendars in both houses create an
5-15 emergency and an imperative public necessity that the
5-16 constitutional rule requiring bills to be read on three several
5-17 days in each house be suspended, and this rule is hereby suspended.