By Hodge H.B. No. 1574
75R5475 JMM-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the right of an employee to inspect the personnel
1-3 records regarding that employee; providing a penalty.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Title 3, Labor Code, is amended by adding Chapter
1-6 104 to read as follows:
1-7 CHAPTER 104. ACCESS TO PERSONNEL RECORDS
1-8 Sec. 104.001. DEFINITIONS. In this chapter:
1-9 (1) "Employee" means an individual employed by an
1-10 employer, including an individual employed in a supervisory,
1-11 managerial, or confidential position. The term includes a person
1-12 subject to recall by an employer after a layoff or leave of absence
1-13 with a right to return and a person who left an employer's
1-14 employment during the preceding 12 months.
1-15 (2) "Employer" means a person that employs five or
1-16 more employees for each working day in each of 20 or more calendar
1-17 weeks. The term does not include a parent, spouse, child, or other
1-18 member of the employer's immediate family or of the immediate
1-19 family of an individual that has a controlling interest in the
1-20 employer.
1-21 Sec. 104.002. RIGHT OF ACCESS TO PERSONNEL RECORDS. (a) An
1-22 employer shall permit an employee to inspect any personnel
1-23 documents that are, have been, or are intended to be used to
1-24 determine the employee's qualifications for employment, promotion,
2-1 transfer, additional compensation, or discharge or other
2-2 disciplinary action.
2-3 (b) The documents an employee is entitled to inspect include
2-4 personnel documents in the possession of a person having a
2-5 contractual agreement with the employer to keep or supply a
2-6 personnel record.
2-7 Sec. 104.003. REQUEST TO INSPECT RECORDS. (a) An employee
2-8 may make a request to inspect the employee's personnel documents by
2-9 completing a written form supplied by the employer.
2-10 (b) An employee may request all or any part of the
2-11 employee's records to the extent provided by Section 104.012.
2-12 Sec. 104.004. TIME AND PLACE FOR INSPECTION. (a) Except as
2-13 otherwise provided in a collective bargaining agreement affecting
2-14 the employee, an employer shall permit not fewer than two
2-15 inspections under this chapter by an employee in a calendar year if
2-16 the requests are made at reasonable intervals.
2-17 (b) The employer shall permit an employee to inspect
2-18 requested records not later than the seventh working day after the
2-19 date the employee makes the request. However, if the employer can
2-20 reasonably show that this deadline cannot be met, the employer is
2-21 entitled to an additional seven days to comply with the request.
2-22 (c) The inspection of records under this chapter shall take
2-23 place at a location reasonably near the employee's place of
2-24 employment and during normal working hours. The employer may allow
2-25 the inspection to take place at a time other than working hours or
2-26 at a place other than where the records are maintained if the time
2-27 or place would be more convenient to the employee.
3-1 Sec. 104.005. REMOVAL OF RECORDS. (a) This chapter does
3-2 not create an entitlement for an employee to remove any part of the
3-3 employee's personnel records from the place where the records are
3-4 made available for inspection. An employer retains the right to
3-5 protect the records maintained by the employer from loss, damage,
3-6 or alteration to ensure the integrity of the records.
3-7 (b) An employer shall mail a copy of a requested record to
3-8 an employee who demonstrates that the employee is unable to review
3-9 the employee's personnel record at the place provided under Section
3-10 104.004 and who makes a written request for the requested record to
3-11 be mailed to an address provided by the employee.
3-12 Sec. 104.006. COPIES OF REQUESTED RECORDS. (a) An employee
3-13 may obtain a copy of the information or part of the information
3-14 contained in the employee's personnel record after the time for
3-15 review provided by Section 104.004.
3-16 (b) An employer may charge a fee for providing a copy of the
3-17 information requested by the employee. The fee may not exceed the
3-18 actual cost of duplicating the information.
3-19 Sec. 104.007. USE OF CERTAIN EXCLUDED INFORMATION. (a)
3-20 Information relating to an employee that is not included in an
3-21 employee's personnel record may not be used by an employer in a
3-22 judicial or administrative proceeding.
3-23 (b) Notwithstanding Subsection (a), personnel record
3-24 information that the court in a judicial proceeding or the
3-25 administrative law judge in an administrative hearing determines
3-26 was not intentionally excluded from an employee's personnel record
3-27 may be used by the employer in the proceeding if the employee
4-1 agrees to the use of the information or has been given a reasonable
4-2 time to review the information.
4-3 (c) Information relating to an employee that was excluded
4-4 from the employee's personnel record may be used in a proceeding at
4-5 the request of the employee.
4-6 Sec. 104.008. INSPECTION BY REPRESENTATIVE OF EMPLOYEE. (a)
4-7 An employee involved in a grievance against an employer may
4-8 designate in writing a representative of the employee's union or
4-9 collective bargaining unit, if any, an attorney, or another
4-10 representative to inspect information in the employee's personnel
4-11 record that is relevant to resolution of the grievance.
4-12 (b) An employer involved in a grievance under Subsection (a)
4-13 shall permit the designated representative to inspect the
4-14 employee's personnel records in the same manner as an employee is
4-15 permitted inspection under Section 104.002.
4-16 Sec. 104.009. CORRECTION OF PERSONNEL RECORD. (a) An
4-17 employee and employer may agree to remove or correct any
4-18 information in the employee's personnel record with which the
4-19 employee disagrees.
4-20 (b) If the employee and employer are unable to reach an
4-21 agreement, the employee may submit a written statement explaining
4-22 the employee's position regarding the disputed information. The
4-23 employer shall attach the employee's statement to the disputed
4-24 material in the personnel record. The employee's statement must be
4-25 included if the disputed material is released to a third party as
4-26 long as the disputed material is a part of the personnel record.
4-27 (c) The inclusion of a written statement under Subsection
5-1 (b) in an employee's personnel record without further comment or
5-2 action by the employer does not imply or create a presumption that
5-3 the employer agrees with the statement.
5-4 (d) If an employer or employee places in the employee's
5-5 personnel record information that the employer or employee knows to
5-6 be false, the employer or employee, as appropriate, is entitled to
5-7 seek legal action to have that information expunged.
5-8 Sec. 104.010. CONFIDENTIAL INFORMATION IN PERSONNEL RECORD.
5-9 (a) An employer or former employer may not, without written notice
5-10 as provided by this section, release from an employee's personnel
5-11 record a disciplinary report, letter of reprimand, or other record
5-12 of disciplinary action regarding the employee to:
5-13 (1) a third party;
5-14 (2) a party who is not a part of the employer's
5-15 organization; or
5-16 (3) a party who is not a part of a labor organization
5-17 representing the employee.
5-18 (b) Written notice to the employee must be provided by first
5-19 class mail sent to the employee's last known address and must be
5-20 mailed on or before the date the information is released.
5-21 (c) This section does not apply to:
5-22 (1) an employee who has specifically waived written
5-23 notice as part of a written, signed employment application with
5-24 another employer;
5-25 (2) a disclosure that is ordered to be made to a party
5-26 in a legal action or arbitration; or
5-27 (3) information that is requested by a governmental
6-1 entity as part of:
6-2 (A) a claim or complaint by the employee; or
6-3 (B) a criminal investigation by the entity.
6-4 (d) An employer shall:
6-5 (1) review a personnel record before releasing
6-6 information from the record to a third party; and
6-7 (2) unless the release is ordered to be made to a
6-8 party in a legal action or arbitration, delete disciplinary
6-9 reports, letters of reprimand, or other records of disciplinary
6-10 action that are more than four years old.
6-11 Sec. 104.011. CERTAIN INFORMATION PROHIBITED. (a) An
6-12 employer may not collect or maintain a record of an employee's
6-13 associations, political activities, publications, communications,
6-14 or nonemployment activities unless the employee submits the
6-15 information to the employer in writing or authorizes the employer
6-16 in writing to collect or maintain the information.
6-17 (b) This section does not apply to information concerning
6-18 activities:
6-19 (1) that occur on the employer's premises or during
6-20 the employee's working hours for the employer that interfere with
6-21 the performance of the employee's duties or the duties of other
6-22 employees; or
6-23 (2) regardless of when and where the activities occur,
6-24 that:
6-25 (A) constitute criminal conduct; or
6-26 (B) may reasonably be expected to harm the
6-27 employer's property, operations, or business.
7-1 (c) Information permitted by this section to be maintained
7-2 by an employer shall be included in the employee's personnel
7-3 record.
7-4 Sec. 104.012. EXCEPTIONS. (a) The right of an employee or
7-5 the employee's designated representative to inspect the employee's
7-6 personnel records does not apply to:
7-7 (1) letters of reference for the employee;
7-8 (2) any part of a test document, except that the
7-9 employee may review a cumulative total test score for all or part
7-10 of the test document;
7-11 (3) materials relating to the employer's staff
7-12 planning, including matters relating to the development, expansion,
7-13 closing, or operational goals of the employer's business, if the
7-14 materials relate to or affect more than one employee;
7-15 (4) information of a personal nature about a person
7-16 other than the employee if disclosure of the information would
7-17 constitute a clearly unwarranted invasion of the other person's
7-18 privacy;
7-19 (5) an employee of an employer that does not maintain
7-20 personnel records;
7-21 (6) records relevant to a pending claim between the
7-22 employer and employee that may be discovered in a judicial
7-23 proceeding; and
7-24 (7) investigatory or security records maintained by an
7-25 employer to investigate criminal conduct by an employee or other
7-26 activity by the employee that could reasonably be expected to harm
7-27 the employer's property, operations, or business.
8-1 (b) The exception provided by Subsection (a)(3) does not
8-2 apply to materials that are, have been, or are intended to be used
8-3 by the employer to determine an employee's qualifications for
8-4 employment, promotion, transfer, or additional compensation or in
8-5 determining whether to discharge or discipline an employee.
8-6 (c) The exception provided by Subsection (a)(7) applies
8-7 unless the employer takes an adverse personnel action against the
8-8 employee based on the information in the records.
8-9 Sec. 104.013. APPLICATION OF OTHER LAW. This chapter does
8-10 not affect a right of access to records provided by any other law.
8-11 Sec. 104.014. ENFORCEMENT. (a) The Texas Workforce
8-12 Commission shall administer and enforce this chapter. The
8-13 commission may adopt rules necessary to administer and enforce this
8-14 chapter.
8-15 (b) An employee who alleges that the employee has been
8-16 denied the employee's rights under this chapter may file a
8-17 complaint with the commission. The commission shall investigate
8-18 the complaint and may request a search warrant or subpoena to
8-19 inspect the files of the employer, if necessary. The commission
8-20 shall attempt to resolve the complaint by conference, conciliation,
8-21 or persuasion.
8-22 (c) If a complaint is not resolved and the commission finds
8-23 that the employer has violated the chapter, the commission may file
8-24 an action to enforce this chapter.
8-25 (d) An employee may file an action against an employer
8-26 alleged to have violated this chapter if efforts under Subsection
8-27 (b) to resolve the employee's complaint concerning the violation
9-1 have failed and the commission does not file an action against the
9-2 employer under Subsection (c).
9-3 (e) Venue for a suit under this section is in the district
9-4 court in the county in which the complainant resides, the
9-5 complainant is employed, or the personnel record at issue is
9-6 maintained.
9-7 (f) The court shall award an employee who prevails in an
9-8 action under this chapter:
9-9 (1) actual damages, including costs; or
9-10 (2) if the employer is found to have wilfully or
9-11 knowingly violated this chapter, $200 in punitive damages,
9-12 reasonable attorney's fees, and actual damages.
9-13 Sec. 104.015. OFFENSE. (a) An employer commits an offense
9-14 if the employer violates this chapter.
9-15 (b) An employer commits an offense if the employer
9-16 discharges or in any other manner discriminates against an employee
9-17 because the employee:
9-18 (1) made a complaint under this chapter to the
9-19 employer or to the Texas Workforce Commission;
9-20 (2) filed or is about to file suit under this chapter;
9-21 or
9-22 (3) testified or is about to testify in an
9-23 investigation or proceeding under this chapter.
9-24 (c) An offense under this section is a Class C misdemeanor.
9-25 SECTION 2. This Act takes effect September 1, 1997.
9-26 SECTION 3. The importance of this legislation and the
9-27 crowded condition of the calendars in both houses create an
10-1 emergency and an imperative public necessity that the
10-2 constitutional rule requiring bills to be read on three several
10-3 days in each house be suspended, and this rule is hereby suspended.