The Texas legislature finished up a jam-packed legislative session over the summer that will have a profound impact on employment law in Texas. The Governor has also announced a special session on August 5 that did not proceed until late last week due to a lack of quorum as most of the Democratic legislators in the Texas House left the state to prevent a vote on a bill relating to voting laws. One of the measures that will be considered in the special session is “[l]egislation shielding private employers and employees from political subdivision rules, regulations, ordinances, and other actions that require any terms of employment that exceed or conflict with federal or state law relating to any form of employment leave, hiring practices, employment benefits, or scheduling practices.” Other than this one measure all bills related to labor and employment law will either become law on September 1 or failed to secure enough votes to make it to the Governor’s desk.
Under this Bill, the Texas Legislature expanded the definition of employer for sexual harassment claims to anyone that employs one or more employees rather than the current 15-person limit. The bill also includes anyone that “acts directly in the interests of an employer in relation to an employee” as employers, which means that supervisors and others may be included as individual defendants. The law will take effect on September 1, 2021, and will likely result in more lawsuits related to sexual harassment as more employers are now covered under the law.
This bill will expand the statute of limitations for making sexual harassment claims from 180 to 300 days after the alleged sexual harassment. It will be effective September 1, 2021 and will result in more claims involving sexual harassment as employees have a longer time to file claims.
The law requires state agencies that issue licenses with a residency requirement to obtain an occupational license to accept a copy of a permanent change of station for the military service member that the spouse is married to establish residency (i.e. a military spouse can show their husband’s/wife’s change of station (i.e. orders) transferring them to a Texas military base or location and that will satisfy any residency requirement for a military spouse to obtain an occupational license).The law will expedite the processing of applications for a license for veterans or military spouses when they have a change of station order (i.e., they are ordered to Texas).
Texas will become a “constitutional carry” state on September 1. The new law allows individuals that are 21 years old or older to carry handguns in public, either in a holster or concealed, without a government permit, provided they are not prohibited from owning a firearm under state or federal law. The law does not permit individuals to carry handguns in government courts (unless allowed under regulations or with the authorization of the court); on racetrack premises; in the secured area of an airport; bars; high school, college, or professional sporting events; prisons; hospitals; nursing homes; and amusement parks.
Most important for employers, the law still permits businesses to prevent members of the public (or employees) from bringing firearms into their businesses. It is a class C misdemeanor if a person carries a firearm into a business when they have oral or written notice that firearms are not allowed on the premises. As a reminder, Texas does require employers to allow employees to have firearms in their locked vehicles parked on company property (barring a few exceptions for certain workplaces where it would not be safe to do so). The law does not change this requirement.
The Texas Legislature passed SB 6 which limits the liability for a number of parties for injuries or deaths related to the pandemic. The most important provision of the new law holds that employers can only be liable for workplace exposures if they knowingly failed to comply with government issued guidance or standards to lower the likelihood of Covid; they had a reasonable opportunity to implement practices related to the guidance or standards; they refused to comply with the standards or guidance; the guidance that the party did not comply with did not conflict with other government guidance or standards; and “reliable scientific evidence shows that the failure to warn the individual of the condition, remediate the condition, or implement or comply with the government-promulgated standards, guidance, or protocols was the cause in fact of the individual contracting” Covid. The law limits potential lawsuits for employers, but it remains to be seen how effective it will be in protecting employers. Employers should do what they can to prevent Covid in the workplace. You can read more about this in my past posts:
This was an eventful labor and employment law session for the Texas legislature. Covid was obviously the hot topic and primary concern. The next regular session in 2023 will likely cover a number of other issues that were considered this year but did not pass through the legislature.
The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.
The information provided is my own and does not reflect the opinion of my firm or anyone else.
The Equal Employment Opportunity Commission’s Select Task Force on the Study of Harassment in the Workplace issued a report in 2016 finding that some sexual harassment training even caused men to be more likely to blame both the harasser and the victim involved in a sexual harassment scenario. The EEOC’s study goes on to say that training often focused too much on legal standards and simply avoiding legal liability.
Bystander training can make a big difference, and the EEOC has recommended it as a form of training to prevent and respond to sexual harassment.
You can read the rest of this post about bystander training and how it can be used to prevent sexual harassment in this article on The Energy Law Blog with my colleague Kindall James.
The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.
The information provided is my own and does not reflect the opinion of my firm or anyone else.
It is something that occurs once every two years. No, this is not a post about elections or the World Test Championship (it is not what it sounds like and is actually pretty awesome). I’m talking about the Texas Legislative Session beginning and the release of their proposed bills. Texas is unique in that the legislature only meets once every two years unless the governor calls a special session.
In this post, we will explore some of the bills that have been introduced so far this legislative session that relate to labor and employment. I plan to update this post once the deadline to introduce new bills ends and probably will do a follow-up post if anything noteworthy passes. I am not going to include any bills related to health insurance or Medicaid, marijuana, or those that are specific to state employees, even though these affect labor and employment law. You can view all of the bills that have been proposed so far here.
This post will focus on those bills that concern the traditional areas that concern labor and employment such as sexual harassment, wage and hour laws, the minimum wage, and discrimination. Due to the number of bills, I am only including a brief summary in addition to that already provided by the legislature with what I consider the highlights of the respective bill.
Relating to the statute of limitations applicable to a sexual harassment complaint filed with the Texas Workforce Commission.
The bill essentially allows a person to file a complaint for sexual harassment with the Texas Workforce Commission within 300 days of the alleged sexual harassment rather than within 180 days. This will allow parties to file more claims.
Relating to the prohibition against sexual harassment in the workplace.
The above house and senate bills essentially define what constitutes sexual harassment within Chapter 21 of the labor code and add liability for a party if they knew or should have known that sexual harassment was occurring and failed to take immediate and appropriate action when they had that knowledge. It tracks the language currently in Section 21.1065, which deals with sexual harassment for unpaid interns, however, the new language applies to all employees.
Relating to discrimination on the basis of hair texture or protective hairstyle associated with race.
At the time of this article, six states have enacted similar laws regarding hairstyle discrimination and 22 states have considered it. These laws ban discrimination based on hairstyles that are typically associated with a certain race (generally these laws list braids, locks, and twists as forms of hairstyles that should be protected). It is possible that bills that have already passed in other states could be expanded or clarified to include other hairstyles that may be traditionally associated with races or ethnic groups.
Relating to requiring certain employers to provide paid sick leave to employees; providing administrative and civil penalties.
The above bill would require employers to provide sick leave for various uses. Employees would be able to earn one hour of paid sick leave for each 30 hours worked.
Relating to the repeal of certain provisions governing state and local enforcement of immigration laws and other provisions related to immigration law.
Relating to state occupational licensing of certain military veterans and military spouses.
These bills deal with the occupational licensing requirements for educators and make it easier for military veterans and spouses to establish residency to obtain a license. The military itself has sought to help military veterans and spouses, as it can be difficult to get an occupational license quickly. You can read the Department of the Treasury and Department of Defense report on the issue here. The issue affects a lot of military spouses that follow their partner throughout their military career, which oftentimes requires frequent relocation..
Sexual Orientation and Gender Identity Discrimination
Relating to the prohibition of certain discrimination based on sexual orientation or gender identity or expression; providing an administrative penalty.
Relating to the prohibition of certain discrimination based on sexual orientation or gender identity or expression; providing an administrative penalty.
These bills would make discriminating against someone on the basis of their gender identity or sexual orientation unlawful and establishes a penalty and a cause of action against employers that do so. As a reminder, Title VII now protects individuals from discrimination on the basis of their sexual orientation and gender identity provided that Title VII applies to the workplace.
Relating to a prohibition of employment discrimination on the basis of reproductive decisions and certain employment agreements limiting reproductive decisions.
This bill prevents the employers from discriminating against employees on the basis of marital status during pregnancy, the use of IVF or other assisted reproduction, the use of contraception or a specific form of contraception, or the “obtainment or use of any other health care drug, device, or service relating to reproductive health.”
Relating to workplace violence prevention in certain health care facilities.
The above bill is meant to help curtail workplace violence at health care facilities by requiring these facilities to create a workplace violence prevention committee or authorize an existing facility committee to develop and implement a workplace violence prevention plan.
Relating to a prohibition on certain discrimination in employment compensation.
This bill bans companies from asking about wage history to prospective hires and makes it illegal to pay an employee less than an employee of the opposite sex for the same or substantially similar work unless it is based on a seniority system, merit system (meaning a system that measures earnings by production) or a bona fide factor other than sex.
Relating to the prohibition of certain employment discrimination regarding an employee who is a volunteer emergency responder.
The bill provides certain protections to volunteer emergency responders that are absent from or late to work because they were responding to an emergency in their capacity as a volunteer emergency responder.
Relating to employment leave for certain family or medical obligations.
The above bill requires employers to provide at least 30 days of leave to employees that have worked for at least one year for a variety of potential uses. These may include the birth of their child, their own illness, and other permitted reasons that are similar under the FMLA.
Relating to the period during which an employee may file a claim for unpaid wages with the Texas Workforce Commission.
The bill basically grants employees one year, rather than 180 days, to file a wage claim. Claims would need to be filed by the first anniversary of when the wages claimed were due.
Relating to the period during which an employee may file a claim for unpaid wages with the Texas Workforce Commission.
The bill basically grants employees one year, rather than 180 days, to file a wage claim. Claims would need to be filed by the first anniversary of when the wages claimed were due.
Relating to certain unlawful employment practices regarding compensation.
This bill essentially prohibits employers from using an employee’s wage history to determine whether to hire an applicant, the wages to pay an employee, whether to employ the person, and whether to promote the employee.
Relating to the timely processing of certain requests relating to the employment of a person released on parole or to mandatory supervision.
Both of these bills are meant to help parolees and released individuals get jobs. These probably stand a good chance of passing. The plight of inmates and parolees who have difficulty getting jobs after they are released got a lot of publicity this year after the inmate firefighters in California served so well in fighting the fires there. Context: A bill passed this year that allowed these prisoners to get firefighting jobs after release.
Relating to the state contribution to the Teacher Retirement System of Texas.
This bill requires the government to contribute a minimum of seven percent to a maximum of ten percent rather than a minimum six percent to the retirement system for teachers.
Relating to a cost-of-living adjustment applicable to certain benefits paid by the Teacher Retirement System of Texas.
The bill states that the government will make a one-time cost of living adjustment payment to someone receiving a monthly death or retirement benefit within the Teacher Retirement System.
Relating to the payment of certain employer contributions for employed retirees of the Teacher Retirement System of Texas.
This bill prevents school districts from passing on the costs of certain payments to retirees through a fee or other method.
And Lastly, The Most “Texas” Bill this Legislative Session
In what is undoubtedly making me question everything that I know as a Texas transplant, Texas has yet to make the Bowie knife the official state knife of Texas.
Most of these bills will not pass. The 87th legislative session is likely to focus on the issues related to COVID. Right now there are hundreds of bills between the House and the Senate (not counting resolutions). Some of these bills may be more likely to pass in future legislative sessions (e.g. those related to marijuana, gender identity, and sexual orientation discrimination), but time will tell what happens.
The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.
The information provided is my own and does not reflect the opinion of my firm or anyone else.
Brett Holubeck (of Houston, Texas) is the attorney responsible for this site.
