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.