80R9428 KSD-D

By: Naishtat H.B. No. 2582

A BILL TO BE ENTITLED

AN ACT

relating to prohibiting employer retaliation against certain employees who report abuse, neglect, or exploitation of an elderly or disabled person.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 48.002(a)(8), Human Resources Code, is amended to read as follows:

(8) "Disabled person" means a person:

(A) with a mental, physical, or developmental impairment [disability] that limits [substantially impairs] the person's ability to:

(i) live alone;

(ii) perform activities of daily living;

(iii) perform personal care, as defined by Section 142.001, Health and Safety Code;

(iv) provide adequately for the person's care or protection; or

(v) report that the person has been abused, neglected, or exploited; and

(B) who is:

(i) [(A)] 18 years of age or older; or

(ii) [(B)] under 18 years of age and [who] has had the disabilities of minority removed.

SECTION 2. Subchapter B, Chapter 48, Human Resources Code, is amended by adding Section 48.055 to read as follows:

Sec. 48.055. EMPLOYER RETALIATION PROHIBITED. (a) In this section, "employee" means a person who provides services for compensation. The term includes a contract laborer.

(b) An employer may not suspend or terminate the employment of, or otherwise discriminate against, a person who in good faith:

(1) reports suspected abuse, neglect, or exploitation of an elderly or disabled person to:

(A) any of the employer's supervisory personnel;

(B) any supervisory personnel of, or an operator of, the facility in which the elderly or disabled person lives, participates in programs or activities, or receives services;

(C) a state regulatory agency or protection and advocacy system; or

(D) a law enforcement agency; or

(2) initiates or cooperates with an investigation or proceeding by a governmental entity or a protection and advocacy system entity relating to an allegation of abuse, neglect, or exploitation of an elderly or disabled person.

(c) A person whose employment is suspended or terminated or who is otherwise discriminated against in violation of this section may sue for injunctive relief, damages, or both.

(d) A plaintiff who prevails in a suit under this section may recover:

(1) actual damages, including damages for mental anguish even if an injury other than mental anguish is not shown;

(2) exemplary damages under Chapter 41, Civil Practice and Remedies Code, if the employer is a private employer;

(3) court costs; and

(4) reasonable attorney's fees.

(e) In addition to amounts recovered under Subsection (d), a plaintiff who prevails in a suit under this section is entitled to:

(1) reinstatement to the person's former position or a position that is comparable in terms of compensation, benefits, and other conditions of employment;

(2) reinstatement of any fringe benefits and seniority rights lost because of the suspension, termination, or discrimination; and

(3) compensation for wages lost during the period of suspension or termination.

(f) A public employee who alleges a violation of this section may sue the employing state or local governmental entity for the relief provided for by this section. Sovereign immunity is waived and abolished to the extent of liability created by this section. A person having a claim under this section may sue a governmental unit for damages allowed by this section.

(g) In a suit under this section against an employing state or local governmental entity, a plaintiff may not recover compensatory damages for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses in an amount that exceeds:

(1) $50,000, if the employing state or local governmental entity has fewer than 101 employees in each of 20 or more calendar weeks in the calendar year in which the suit is filed or in the preceding year;

(2) $100,000, if the employing state or local governmental entity has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks in the calendar year in which the suit is filed or in the preceding year;

(3) $200,000, if the employing state or local governmental entity has more than 200 and fewer than 501 employees in each of 20 or more calendar weeks in the calendar year in which the suit is filed or in the preceding year; and

(4) $250,000, if the employing state or local governmental entity has more than 500 employees in each of 20 or more calendar weeks in the calendar year in which the suit is filed or in the preceding year.

(h) If more than one subdivision of Subsection (g) applies to an employing state or local governmental entity, the amount of monetary damages that may be recovered from the entity in a suit brought under this section is governed by the applicable provision that provides the highest damage award.

(i) A plaintiff suing under this section has the burden of proof, except that there is a rebuttable presumption that the plaintiff's employment was suspended or terminated or that the plaintiff was otherwise discriminated against for reporting suspected abuse, neglect, or exploitation if the suspension, termination, or discrimination occurs before the 61st day after the date on which the person made a report in good faith.

(j) A suit under this section may be brought in a district or county court of the county in which:

(1) the plaintiff was employed by the defendant; or

(2) the defendant conducts business.

(k) It is an affirmative defense to a suit under Subsection (c) that an employer would have taken the action against the employee that forms the basis of the suit based solely on information, observation, or evidence that is not related to the fact that the employee reported suspected abuse, neglect, or exploitation of an elderly or disabled person or initiated or cooperated with an investigation or proceeding relating to an allegation of abuse, neglect, or exploitation of an elderly or disabled person.

(l) A public employee who has a cause of action under Chapter 554, Government Code, based on conduct described by Subsection (b), may not bring an action based on that conduct under this section.

(m) This section does not apply to a person who reports the person's own abuse, neglect, or exploitation or who initiates or cooperates with an investigation or proceeding by a governmental entity or a protection and advocacy system entity relating to an allegation of the person's own abuse, neglect, or exploitation.

SECTION 3. This Act applies only to a report of suspected abuse, neglect, or exploitation of an elderly or disabled person that is made on or after the effective date of this Act. A report of suspected abuse, neglect, or exploitation of an elderly or disabled person that is made before that date is governed by the law in effect on the date the report was made, and the former law is continued in effect for that purpose.

SECTION 4. This Act takes effect September 1, 2007.