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.