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Texas Legislative Round-Up

  • September 1, 2011

The 82nd session of the Texas legislature resulted in several new laws affecting employers. We summarize the more noteworthy legislation in this article. All laws are effective September 1, 2011, unless otherwise noted. 

Employee Transportation and Storage of Firearms and Ammunition on Employer Parking Areas

Referred to by some as a “safe commuter bill,” Texas Senate Bill 321 prohibits most public and private employers from preventing employees who otherwise lawfully possess a firearm or ammunition from transporting or storing those items in a locked, privately owned motor vehicle in employer-provided parking areas.  Employers can still prohibit employees from carrying a concealed handgun elsewhere on their premises, and the law does not alter the personal liability of an individual who causes harm to another through the use of a firearm or ammunition.
 
Employers have protections against liability resulting from their compliance with the new law.  For example, employers cannot be held liable in a civil action for personal injury, death, property damage, or any other damages resulting from or arising out of an occurrence involving a firearm or ammunition that they must now allow on their property, except in cases of gross negligence.  Nor will employers be deemed to have provided an unsafe workplace if they allow the storage of guns and ammunition in accordance with the new law.  Employers do not have to “patrol, inspect, or secure” their parking areas or employee motor vehicles to “investigate, confirm, or determine” whether employees lawfully possess firearms or ammunition.
 
The law contains some exceptions.  For example, an employee cannot store a firearm or ammunition in a company-owned vehicle used by the employee in the course and scope of employment, unless the employee must use or store such firearm or ammunition as part of the employee’s job.  The law does not apply to school districts, an open-enrolled charter school (as defined by Section 5.001 of the Education Code), a private school (as defined by Section 22.081 of the Education Code), property owned or controlled by a person (other than the employer) that is subject to a valid, unexpired oil, gas or other mineral lease that contains a provision prohibiting the possession or firearms on the property, or specified properties owned or leased by chemical manufacturers or oil and gas refiners. 

The legislation does not specify the penalty for an employer who violates this law.  Nonetheless, employers should review their policies and practices to ensure consistency with the new law, which will be codified in Chapter 52 of the Texas Labor Code, subchapter G, and which also amends Section 411.203 of the Texas Government Code.  The full text of the legislation can be found at: http://www.legis.state.tx.us/BillLookup/History.aspx?LegSess=82R&Bill=SB321.

Safe Harbor for Employee Misclassification under Texas Unemployment Compensation Act

The Texas Unemployment Compensation Act (found at Texas Labor Code Title 4, Subtitle A, ch. 201 et seq.) requires employers to pay contributions to the state’s unemployment compensation fund, which is assessed based on wages paid to employees.  This contribution is not required for services received from independent contractors whose “performance of the service has been and will continue to be free from control or direction . . . .”  Tex. Labor Code § 201.041.  Under current law, the Texas Workforce Commission’s determination that an employee has been misclassified as an independent contractor results in the employer owing not only all unpaid contributions, but also penalties and interest.  Tex. Labor Code § 213.021 et seq.  An employer also may be subject to criminal penalties for willful violations.  Tex. Labor Code § 214.004-7. 

Recently enacted Texas House Bill 2579 provides employers with a safe harbor from penalties and interest if they have reasonably relied on either (1) a determination by the Texas Workforce Commission involving the employer or (2) a ruling from a Texas court, finding that the service provided was not employment.  The ruling or determination must not have been reversed or otherwise invalidated, and the nature of the employer’s business and service must be “substantially unchanged” since the issuance of the original ruling or determination, as determined by the Commission.  The full text of the bill can be found at http://www.legis.state.tx.us/tlodocs/82R/billtext/pdf/HB02579F.pdf.

Employment Protection for State Military

Texas House Bill 1178 amends Section 431 of the Texas Government Code to expand the potential legal remedies available to members of a state military force, such as the Texas National and State Guard, who are terminated because they were ordered to training or duty or who are denied a return to the same employment after a release from duty.  The bill was signed into law by Governor Rick Perry on June 17, 2011, and became immediately effective.
 
Before this amendment, a member of a state military force could be awarded a maximum of six months’ compensation, as well as reasonable attorneys’ fees, for an employer’s unlawful termination or denial of reemployment.  Now, an employee could potentially recover back pay for a period of up to two years and/or be reinstated to the original position.  The employee also may recover punitive damages and compensatory damages (including future pecuniary losses, emotional pain, suffering, inconvenience, and mental anguish) of up to a maximum amount specified in the statute, which depends on the size of the employer (e.g., $50,000 for employers with fewer than 101 employees, and up to $300,000 for employers with more than 500 employees).
 
Before the amendment, an employer could defend against a claim of unlawful termination or denial of reemployment under this section if the employer’s circumstances changed during the employee’s absence so that reemployment was “impossible or unreasonable.”  This defense is no longer available, but an employer may still present evidence that the employee was terminated for a reason other than because they were ordered to training or duty.  The full text of the bill can be found at http://www.legis.state.tx.us/tlodocs/82R/billtext/pdf/HB01178F.pdf.

Employer Background Investigations Related to Employee’s Serving Special Populations

The 82nd regular session of the Texas legislature passed several bills related to the hiring and firing of individuals serving special populations.

House Bill 1610 amends Section 21.006 of the Education Code to expand protections of minors and add to the areas of permissible investigations and terminations of teachers.  First, this amendment requires full investigations into educator misconduct with minors even if the educator resigns prior to completion of the investigation.  Teachers convicted of felonies or who have received deferred adjudication for felony offenses may be terminated as soon as practicable; before this amendment, the Education Code provided for such termination only upon the revocation of a teacher’s certification.  The amendment also expands the list of acts comprising offenses under Section 21.12 of the Penal Code to include, among other acts, sexual contact with any student enrolled in the same school district as the offending individual, not merely the same school.  The full text of HB 1610 is available at:
http://www.legis.state.tx.us/tlodocs/82R/billtext/pdf/HB01610F.pdf#navpanes=0.

House Bill 2678 amends Section 1001 of the Education Code to require national criminal history checks of all drivers’ education instructors by September 1, 2013.  A driver education school must then terminate or deny employment to any instructor who has been convicted of any felony under Title 5 of the Texas Penal Code (assaults against the person) or any offense for which a person would be required to register as a sex offender, if either offense was committed against an individual who is was either under 18 years old or enrolled in a public school.  This provision does not apply, however, if the offense under Title 5 of the Texas Penal Code was committed more than 30 years ago. The full text of HB 2678 is available at:  http://www.legis.state.tx.us/tlodocs/82R/billtext/pdf/HB02678F.pdf#navpanes=0.

House Bill 2609 amends Section 250.006(a) of the Health and Safety Code to expand the list of convictions barring employment at facilities serving the elderly or persons with disabilities.  Now, a conviction for harming, threatening to harm, or obstructing the service of someone serving as a witness or informant to a crime is an additional bar to employment. The full text of HB 2609 is available at: http://www.legis.state.tx.us/tlodocs/82R/billtext/pdf/HB02609F.pdf#navpanes=0.

Finally, Senate Bill 223 amends Section 250.001 of the Health and Safety Code, which prohibits home and community support service agencies from employing applicants with convictions of certain crimes (including, for example, homicide, assault, endangering a child, and Medicaid fraud).  The amendment also provides that these agencies must immediately discharge any current employee whose criminal background checks reveal any of these convictions or some other conviction that is a contraindication to employment. The full text of SB 223 is available at: http://www.legis.state.tx.us/tlodocs/82R/billtext/pdf/SB00223F.pdf#navpanes=0.

Jackson Lewis attorneys are available to answer inquiries regarding these and other workplace developments.

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