83R13855 MAW-F
 
  By: Lewis H.B. No. 1031
 
  Substitute the following for H.B. No. 1031:
 
  By:  Farney C.S.H.B. No. 1031
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the confidentiality of certain communications
  involving an ombudsman program established by an employer as an
  alternative dispute resolution service.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Title 7, Civil Practice and Remedies Code, is
  amended by adding Chapter 160 to read as follows:
  CHAPTER 160. OMBUDSMAN PROGRAM ESTABLISHED BY EMPLOYER
         Sec. 160.001.  DEFINITIONS. In this chapter:
               (1)  "Employee" means a person who is employed by an
  employer.
               (2)  "Employer" means a person who employs one or more
  employees.
               (3)  "Investigation" means an inquiry conducted for an
  employer to make an official factual determination or an official
  disposition or decision.
         Sec. 160.002.  ESTABLISHMENT OF OMBUDSMAN PROGRAM. (a)  An
  employer may establish an ombudsman program to provide an
  alternative dispute resolution service.  The program may provide
  information, facilitation, mediation, and conciliation guidance
  and assistance to:
               (1)  help employees and others resolve workplace and
  organizational disputes; and
               (2)  permit employees and other persons to have
  confidential communications on issues of concern or conflict,
  including allegations of misconduct.
         (b)  An ombudsman program established under this chapter by
  an employer:
               (1)  must be neutral and functionally independent;
               (2)  may not have the authority to make managerial
  decisions with regard to any issue brought to the program;
               (3)  may not be responsible for any essential business
  function of the employer, including operations, compliance, human
  resources, or equal employment opportunity;
               (4)  may not be staffed by employees who hold positions
  with responsibility for any essential business function of the
  employer, including operations, compliance, human resources, or
  equal employment opportunity;
               (5)  may be staffed by employees of the employer but not
  by an officer or director of the employer; and
               (6)  must have direct access to the employer's senior
  management.
         (c)  An ombudsman program may not have authority to receive
  notice of claims against the employer.
         (d)  An ombudsman program may not have authority to collect,
  assemble, or maintain permanent information or records relating to
  confidential communications for the employer.
         (e)  An ombudsman program may not have authority to conduct a
  formal investigation for the employer.
         (f)  An ombudsman program and the employer establishing the
  program shall adequately publicize the existence, purpose, and
  limitations of the program and inform employees and others that
  communications with the program are confidential.
         (g)  An employer that establishes an ombudsman program under
  this chapter shall ensure that the program has procedures and
  facilities adequate to permit confidential access to the program's
  office and to preserve confidential communications. The program
  shall adhere to generally accepted standards for organizational
  ombudsman programs to preserve confidentiality of communications.
         Sec. 160.003.  CONFIDENTIALITY PROVISIONS. (a)  This
  section applies only to an ombudsman program that meets the
  requirements of Section 160.002.
         (b)  Except as provided by Subsections (c) and (d), the
  following oral and written communications are confidential,
  privileged, and not subject to discovery and may not be used as
  evidence in any judicial or administrative proceeding:
               (1)  communications between a staff member of the
  program and an employee or other person for the purpose of assisting
  with the informal and expeditious resolution of a concern or
  complaint; and
               (2)  communications between staff members of the
  program for the purpose of assisting with the informal and
  expeditious resolution of a concern or complaint.
         (c)  The following oral or written communications are not
  privileged or protected from discovery in any judicial or
  administrative proceeding:
               (1)  communications between a person making a
  complaint, or any staff member of an ombudsman program, and an
  officer, director, agent, or employee of the employer for the
  purpose of notifying the officer, director, agent, or employee of
  the existence of an unsafe practice or violation of a state or
  federal law; and
               (2)  communications concerning:
                     (A)  conduct, including a pattern of conduct, that
  is reasonably likely to result in damages to any person; or
                     (B)  a threat of serious harm or injury to any
  person.
         (d)  A staff member of an ombudsman program shall disclose
  confidential material:
               (1)  that concerns conduct, including a pattern of
  conduct, that is reasonably likely to result in damages to any
  person; or
               (2)  the disclosure of which is necessary to prevent
  serious harm or injury to any person.
         Sec. 160.004.  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, the attorney-client privilege, and the attorney
  work product privilege.
         Sec. 160.005.  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
  component of an ombudsman program 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.
         Sec. 160.006.  APPLICABILITY OF CHAPTER. (a)  This chapter
  does not apply to an ombudsman program or other alternative dispute
  resolution service established by an employer unless the program or
  service provides expressly in writing that this chapter applies to
  the program or service.
         (b)  This chapter does not prevent an employer from
  establishing an ombudsman program or other alternative dispute
  resolution service that is not subject to this chapter.
         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 that commences on or after the effective
  date of this Act. A suit or administrative proceeding that
  commences before that date is governed by the law in effect on the
  date the suit or proceeding commenced, and the former law is
  continued in effect for that purpose.
         SECTION 3.  This Act takes effect September 1, 2013.