76R11563 T By McCall H.B. No. 3214 Substitute the following for H.B. No. 3214: By Corte C.S.H.B. No. 3214 A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to the use of certain information regarding a current or 1-3 former employee. 1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-5 SECTION 1. Title 11, Chapter 341, Government Code, is 1-6 amended by adding Subchapter D to read as follows: 1-7 CHAPTER D. DISCLOSURE BY EMPLOYER OF INFORMATION REGARDING 1-8 CERTAIN EMPLOYEES OR FORMER EMPLOYEES WHO ARE LAW 1-9 ENFORCEMENT APPLICANTS 1-10 Sec. 341.101. DEFINITIONS. In this chapter: 1-11 (1) "Employee" means a person who performs services for an 1-12 employer, whether or not for compensation. 1-13 (2) "Employer" means a person who has one or more 1-14 employees or other individuals who perform services under a 1-15 contract of hire or service, whether expressed or implied, or oral, 1-16 or written. 1-17 (3) "Job performance" means the manner in which an 1-18 employee performs the duties and responsibilities of a position of 1-19 employment and includes both written or oral analysis of the 1-20 employee's attendance at work, attitude toward the job, effort, 1-21 knowledge, and skills, performance evaluations, awards, demotions, 1-22 promotions, disciplinary actions, eligibility for rehire, and other 1-23 analogous personnel actions. 1-24 (4) "Law enforcement agency" means a prospective 2-1 employer who employs peace officers as defined by Sec. 2.12 of the 2-2 Texas Code of Criminal Procedure. 2-3 (5) "Prospective employee" means any person who has 2-4 made an application, either oral, or written, or has sent a resume 2-5 or other correspondence indicating an interest in employment. 2-6 (6) "Prospective employer" means an employer to whom a 2-7 prospective employee has made an application, either oral or 2-8 written, or sent a resume or other correspondence expressing an 2-9 interest in employment. 2-10 Sec. 341.102. AUTHORIZED DISCLOSURE. (a) For purposes of 2-11 performing a thorough background investigation for applicants 2-12 applying for employment as a peace officer, an employer shall 2-13 disclose job performance information relating to a current or 2-14 former employee, upon request of a law enforcement agency, if all 2-15 of the following conditions are met: 2-16 (1) The request is made in writing. 2-17 (2) The request is accompanied by a notarized 2-18 authorization by the applicant releasing the employer of liability. 2-19 (3) The request and the authorization are presented to 2-20 the employer by a sworn officer or other authorized representative 2-21 of the employing law enforcement agency. 2-22 (b) Non-disclosure agreements between applicants applying 2-23 for employment as a peace officer and current or former employers 2-24 will not apply to the release of information regarding an 2-25 applicant's job performance to a law enforcement agency requesting 2-26 the information in compliance with this subchapter. 2-27 Sec. 341.103. EXCEPTION TO CONFIDENTIALITY FOR REQUESTS FOR 3-1 INFORMATION BETWEEN LAW ENFORCEMENT AGENCIES. For purposes of this 3-2 subchapter only, the confidentiality provision contained in Sec. 3-3 143.089(g) of the Texas Local Government Code shall not apply and 3-4 the personnel file maintained for the law enforcement agency's use 3-5 shall be released if a law enforcement agency processing an 3-6 applicant requests job performance information from another law 3-7 enforcement agency. 3-8 Sec. 341.104. INFORMATION PROVIDED TO APPLICANT FOR 3-9 EMPLOYMENT. (a) On receipt of a written request by an applicant 3-10 for employment, a prospective employer shall provide to the 3-11 applicant, not later than the 30th day after the date on which the 3-12 request is received by the employer, copies of all written 3-13 communications from current and former employers of the applicant 3-14 that may reasonably be believed to affect the applicant's 3-15 possibility of employment with the prospective employer. 3-16 (b) An applicant for employment must make a request under 3-17 Subsection (a) not later than the 30th day after the date on which 3-18 the applicant completes the application process required by the 3-19 prospective employer. 3-20 Sec. 341.105. IMMUNITY FROM CIVIL LIABILITY; EMPLOYER 3-21 REPRESENTATIVES. (a) An employer who discloses information about 3-22 a current or former employee under Section 103.006 is immune from 3-23 civil liability for that disclosure or any damages proximately 3-24 caused by that disclosure unless it is proven by the preponderance 3-25 of the evidence that the information disclosed was known by that 3-26 employer to be false at the time the disclosure was made. 3-27 (b) This chapter applies to a managerial employee or other 4-1 representative of the employer who is authorized to provide and who 4-2 provides information in accordance with this chapter in the same 4-3 manner that it applies to an employer. 4-4 (c) In the absence of fraud or malice and on a finding by 4-5 the court that the statements and information provided by the 4-6 current or former employer were not false in an action under this 4-7 section brought by the applicant, the court may award to the 4-8 defendant reasonable and necessary attorney's fees and court costs. 4-9 Sec. 341.106. CIVIL INJUNCTION. An employer's refusal to 4-10 disclose information to a law enforcement agency in accordance with 4-11 this section may constitute grounds for a civil action for 4-12 injunctive relief requiring disclosure on the part of an employer. 4-13 SECTION 2. Subchapter D, Government Code, as added by this 4-14 Act, applies only to a cause of action that accrues on or after the 4-15 effective date of this Act. A cause of action that accrues before 4-16 that date is governed by the law as it existed immediately before 4-17 the effective date of this Act, and that law is continued in effect 4-18 for that purpose. 4-19 SECTION 3. This Act takes effect September 1, 1999. 4-20 SECTION 4. The importance of this legislation and the 4-21 crowded condition of the calendars in both houses create an 4-22 emergency and an imperative public necessity that the 4-23 constitutional rule requiring bills to be read on three several 4-24 days in each house be suspended, and this rule is hereby suspended.