79R4174 JMM-D

By:  Wentworth                                                    S.B. No. 508



A BILL TO BE ENTITLED

AN ACT

relating to the confidentiality of certain communications 
involving an ombudsman's office established by an employer.
	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:                        
	SECTION 1.  Title 3, Labor Code, is amended by adding Chapter 
104 to read as follows:

CHAPTER 104.  CONFIDENTIAL COMMUNICATIONS WITH OMBUDSMAN
	Sec. 104.001.  DEFINITIONS.  In this chapter:                           
		(1)  "Employee" means a person employed by an employer.                
		(2)  "Employer" means a person who employs at least one 
employee.  The term does not include a state agency, political 
subdivision, or other public entity or instrumentality.
		(3)  "Investigation" means an inquiry conducted for an 
employer, the purpose of which is to make an official factual 
determination or an official disposition or decision.
	Sec. 104.002.  ESTABLISHMENT OF OMBUDSMAN'S OFFICE.  (a)  An 
employer may establish an ombudsman's office to permit employees 
and other persons who interact with employees to have confidential 
communications on issues of concern, including allegations of 
organizational misconduct.
	(b)  An ombudsman's office established under this chapter by 
an employer:
		(1)  must be independent and neutral;                                  
		(2)  may not have the authority to make managerial 
decisions with regard to any issue brought to the office;
		(3)  may not be responsible for any essential business 
function of the employer, including operations, compliance, human 
resources, or equal employment opportunity;
		(4)  may be staffed by employees of the employer but not 
by an officer or director of the employer; and
		(5)  must have direct access to the employer's senior 
management.    
	(c)  An ombudsman's office may not have authority to conduct 
a formal investigation for the employer.
	(d)  An ombudsman's office and the employer establishing the 
office shall adequately publicize the existence of the office and 
inform employees that communications with the office are 
confidential.
	(e)  An employer that establishes an ombudsman's office 
under this chapter shall ensure that the office has adequate 
physical measures to permit private access to the office and to 
preserve confidential communications within the office.  The office 
shall adhere to standard practices and procedures designed to 
preserve confidentiality of communications.
	Sec. 104.003.  CONFIDENTIALITY PROVISIONS.  (a)  This 
section applies only to an ombudsman's office that meets the 
requirements of Section 104.002.
	(b)  The following oral and written communications are 
confidential:  
		(1)  communications between a member of the staff of 
the office who is acting within the scope of the person's employment 
and an employee or other person who is consulting the office;
		(2)  communications between a member of the staff of 
the office and an employee with regard to a matter brought to the 
attention of the office; and
		(3)  communications between members of the staff of the 
office.      
	(c)  The staff of an ombudsman's office may not voluntarily 
disclose or be compelled to disclose confidential information, 
unless the person determines that disclosure is necessary to 
prevent an imminent threat of serious harm.
	(d)  Information disclosed in violation of this chapter is 
not admissible as evidence in any proceeding or for any other 
purpose.
	Sec. 104.004.  APPLICATION OF OTHER LAW.  The 
confidentiality provisions of this chapter are in addition to any 
privilege or protection under statutory or common law, including 
Section 154.073, Civil Practice and Remedies Code, the 
attorney-client privilege, and the attorney work product 
privilege.
	Sec. 104.005.  ADMISSIBILITY OF OTHER INFORMATION.  This 
chapter does not prevent:
		(1)  the discovery or admissibility of information that 
is otherwise discoverable;
		(2)  the disclosure of information for research or 
educational purposes in connection with a training or educational 
program of an ombudsman's office if the identity of the parties and 
the specific issues from the confidential communication are not 
identifiable; or
		(3)  the preparation and disclosure of statistical 
summary reports organized by category of the issues presented if 
the summary is based on a sufficiently large number of issues so 
that the identity of the parties and the specific issues from the 
confidential communication are not identifiable.
	SECTION 2.  The change in law made by this Act with regard to 
the confidentiality of communications applies only to a suit or 
administrative proceeding commenced on or after the effective date 
of this Act.  A suit or administrative proceeding commenced before 
the effective date of this Act is governed by the law in effect on 
the date the suit or proceeding was commenced, and the former law is 
continued in effect for that purpose.
	SECTION 3.  This Act takes effect September 1, 2005.