2019S0304-1 02/28/19

By: Zaffirini S.B. No. 2153

A BILL TO BE ENTITLED

AN ACT

relating to the adjudication of emergency evacuation discrimination complaints by the Texas Workforce Commission civil rights division.

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

SECTION 1. Section 22.001, Labor Code, is amended to read as follows:

Sec. 22.001. DEFINITIONS. In this chapter:

(1) "Commission" means the Texas Workforce Commission civil rights division.

(2) "Complainant" means an employee who brings an action or proceeding under this chapter.

(3) "Disaster" means the occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property that results from a natural or man-made cause, including fire, flood, earthquake, wind, storm, wave action, oil spill or other water contamination, volcanic activity, epidemic, air contamination, blight, drought, infestation, explosion, riot, hostile military or paramilitary action, or other public calamity requiring emergency action, or an energy emergency.

(4) [(2)] "Emergency evacuation order" means an official statement issued by the governing body of this state or a political subdivision of this state to recommend the evacuation of all or part of the population of an area stricken or threatened with a disaster. The term includes a declaration of local disaster under Section 418.108, Government Code.

(5) [(3)] "Emergency services personnel" includes fire fighters, police officers and other peace officers, emergency medical technicians, and other individuals who are required, in the course and scope of their employment, to provide services for the benefit of the general public during emergency situations.

(6) [(4)] "Employee" means an individual who is employed by an employer for compensation.

(7) [(5)] "Employer" means a person who employs one or more employees.

(8) [(6)] "Political subdivision" means a county, municipality, special district, or authority of this state.

(9) "Respondent" means an employer who is the subject of a complaint filed under this chapter.

SECTION 2. Section 22.002, Labor Code, is amended to read as follows:

Sec. 22.002. DISCRIMINATION PROHIBITED. (a) An employer may not discharge or in any other manner discriminate against an employee who leaves the employee's place of employment to participate in a general public evacuation ordered under an emergency evacuation order.

(b) A violation of this section is an unlawful employment practice.

SECTION 3. Chapter 22, Labor Code, is amended by adding Sections 22.005 through 22.017 to read as follows:

Sec. 22.005. FILING OF COMPLAINT. (a) An employee claiming to be aggrieved by an unlawful employment practice under Section 22.002, or the employee's agent, may file a complaint with the commission.

(b) A complaint must be in writing and must include:

(1) a statement that an unlawful employment practice under Section 22.002 was committed;

(2) the facts on which the complaint is based, including the date, place, and circumstances of the alleged unlawful employment practice; and

(3) facts sufficient to enable the commission to identify the respondent.

(c) Not later than the 10th day after the date a complaint meeting the requirements of Subsection (b) is filed, the commission shall serve the respondent with a copy of the complaint.

(d) A complaint may be amended to cure technical defects or omissions or to clarify and amplify an allegation made in the complaint.

(e) An amendment to a complaint alleging additional facts that constitute an unlawful employment practice under Section 22.002 relating to or arising from the subject matter of the original complaint relates back to the date the complaint was first received by the commission.

Sec. 22.006. INVESTIGATION BY COMMISSION. The commission shall investigate a complaint filed under Section 22.005 and determine if there is reasonable cause to believe that the respondent engaged in an unlawful employment practice as alleged in the complaint.

Sec. 22.007. DISMISSAL FOR LACK OF REASONABLE CAUSE. (a) If, after investigation, the commission determines that reasonable cause does not exist to believe that the respondent engaged in an unlawful employment practice as alleged in a complaint, the commission shall issue a written determination incorporating the finding that the evidence does not support the complaint and dismissing the complaint.

(b) The commission shall provide a copy of a determination and dismissal issued under Subsection (a) to the complainant, the respondent, and other agencies as required by law.

Sec. 22.008. RESOLUTION BY INFORMAL METHODS. (a) If, after investigation, the commission determines that there is reasonable cause to believe that the respondent engaged in an unlawful employment practice as alleged in a complaint, the commission shall endeavor to resolve the complaint by informal methods of conference, conciliation, and persuasion.

(b) The Texas Workforce Commission, its executive director, or its other officers or employees may publicly disclose information about efforts to resolve an alleged unlawful employment practice by conference, conciliation, or persuasion only after receiving from the complainant and respondent written consent to such disclosure. This subsection applies regardless of whether the commission has made a determination of reasonable cause.

Sec. 22.009. NOTICE OF DISMISSAL OR FAILURE TO RESOLVE COMPLAINT. If, after determining that there is reasonable cause to believe that the respondent engaged in an unlawful employment practice as alleged in a complaint, the commission dismisses or fails to resolve the complaint, the commission shall inform the complainant of the dismissal or the failure to resolve in writing by certified mail.

Sec. 22.010. TEMPORARY INJUNCTIVE RELIEF. (a) If the commission concludes from a preliminary investigation of an unlawful employment practice alleged in a complaint that prompt judicial action is necessary, the commission shall file a petition seeking appropriate temporary relief against the respondent pending final determination of a proceeding under this chapter.

(b) The petition shall be filed in a district court in a county in which:

(1) the alleged unlawful employment practice that is the subject of the complaint occurred; or

(2) the respondent resides.

(c) A court may not issue temporary injunctive relief unless the commission shows:

(1) a substantial likelihood of success on the merits; and

(2) irreparable harm to the complainant in the absence of temporary relief pending final determination on the merits.

(d) Temporary injunctive relief issued under this section may include:

(1) prohibiting the respondent from engaging in an unlawful employment practice under Section 22.002; and

(2) ordering additional equitable relief under Section 22.003.

Sec. 22.011. CIVIL ACTION BY COMMISSION. (a) The commission may bring a civil action against a respondent if:

(1) the commission determines that there is reasonable cause to believe that the respondent engaged in an unlawful employment practice as alleged in a complaint; and

(2) the commission's efforts to resolve the complaint to the satisfaction of the complainant and respondent through informal methods have been unsuccessful.

(b) The complainant may intervene in a civil action brought by the commission.

Sec. 22.012. NOTICE OF COMPLAINANT'S RIGHT TO FILE CIVIL ACTION. (a) A complainant who receives notice under Section 22.009 that the commission has dismissed or failed to resolve a complaint may request from the commission a written notice of the complainant's right to file a civil action.

(b) The complainant must request the notice in writing.

(c) The executive director of the Texas Workforce Commission may issue the notice.

(d) Failure of the executive director of the Texas Workforce Commission to issue the notice of a complainant's right to file a civil action does not affect the complainant's right under this chapter to bring a civil action against the respondent.

Sec. 22.013. CIVIL ACTION BY COMPLAINANT. A complainant in a proceeding under this chapter may bring a civil action against the respondent. If a complainant receives a notice from the commission under Section 22.012, the complainant must initiate the civil action not later than 60 days after the date the notice is received.

Sec. 22.014. COMMISSION'S INTERVENTION IN CIVIL ACTION BY COMPLAINANT. After receipt of a timely application, a court may permit the commission to intervene in a civil action filed under Section 22.013 if:

(1) the commission certifies that the case is of general public importance; and

(2) before commencement of the action, the commission issued a determination of reasonable cause to believe that Section 22.002 was violated.

Sec. 22.015. INJUNCTION; EQUITABLE RELIEF. On finding that a respondent engaged in an unlawful employment practice as alleged in a complaint, a court may:

(1) prohibit by injunction the respondent from engaging in an unlawful employment practice under Section 22.002; and

(2) order additional equitable relief under Section 22.003.

Sec. 22.016. COMPELLED COMPLIANCE. If a respondent fails to comply with a court order issued under this chapter, the complainant or, on the complainant's written request, the commission, may commence proceedings to compel compliance with the order.

Sec. 22.017. TRIAL DE NOVO. (a) A judicial proceeding under this chapter is by trial de novo.

(b) A commission finding, recommendation, determination, or other action is not binding on a court.

SECTION 4. The changes in law made by this Act apply only to a violation of Section 22.002, Labor Code, as amended by this Act, that is based on conduct occurring on or after the effective date of this Act. A violation of Section 22.002, Labor Code, that is based on conduct occurring before the effective date of this Act is governed by the law in effect on the date the conduct occurred, and the former law is continued in effect for that purpose.

SECTION 5. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2019.