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Texas Legislature Wraps Up 80th Session: New Laws Employers Need to Know

Labor and Employment Update

May 31, 2007

On Monday, May 28, 2007, the 80th Regular Session of the Texas Legislature officially came to an end. A number of new statutes that directly affect Texas employers are summarized below. Unless otherwise noted, the Governor has until June 17, 2007, to veto, sign or allow these bills to become law without signature.

Workers' Compensation

HB 34 – Workers’ Compensation Kickbacks Prohibited: The Texas Workers’ Compensation Act was amended to specifically prohibit kickbacks for arranging referrals or providing services concerning workers’ compensation claims. The new law applies to insurance adjusters, case managers and anyone else who requests or performs a service involving the delivery of benefits to an injured employee, including peer reviews, medical exams and case management. An administrative violation will be found where a covered individual offers to pay, pays, solicits or receives an “improper inducement” for, or improperly attempts to influence through improper threats or otherwise, the delivery of benefits to an injured employee. Effective Date: Signed by the Governor, May 24, 2007; Effective September 1, 2007.

HB 886 – Prior Approval for Return-to-Work Pilot Program Grants: Currently, the return-to-work pilot program grants up to $2,500 to a small employer who makes workplace modifications for an injured employee to come back to work. These modifications often are structural, such as wheelchair ramps, but they may include any modifications that help the injured employee, such as computer software. Concerned that some employers were reluctant to assume the cost of such modifications without any assurance that they would be reimbursed, the Legislature passed HB 886, which provides the small employer with the option of submitting a proposal to the Texas Department of Insurance for preauthorization. If the Department of Insurance approves the proposal, it will guarantee reimbursement of the expenses incurred by the employer in implementing the modifications, unless the modifications differ substantially from the employer’s proposal. Effective Date: Signed by the Governor, May 17, 2007; Effective May 17, 2007.

Unemployment Compensation Benefits

HB 550 – Eligibility of Certain Individuals for Unemployment Compensation: HB 550 amends the Labor Code to provide that an employer’s account may not be charged for benefits computed on an employee’s benefit wage credits nor may an individual be disqualified from benefits where the individual's separation resulted from the employee's leaving the workplace to care for a terminally ill spouse as evidenced by a physician's statement or other documentation, but only if no reasonable alternative care was available. While current law provides similar treatment to employees separated as the result of documented family violence or stalking, HB 550 further amends the Labor Code to permit an employee who is the victim of stalking or family violence to provide one (instead of all three, as previously required) of the following as documentary evidence: an active or recently issued protective order; a police record; or a physician's statement or other medical documentation. The new law also eases the requirements for a physician's statement or medical documentation and prohibits the disclosure of information regarding an employee who was the victim of family violence, unless the employee consents. Effective Date: Sent to the Governor, May 28, 2007; Effective upon signature of the Governor or June 17, 2007 if allowed to become law without signature.

Discriminatory Employment Practices

HB 1205 – Job Protection for Volunteer First Responders: To encourage citizens to serve as volunteer firefighters and emergency medical services (EMS) personnel, this new statute protects volunteer emergency responders from being terminated, suspended or otherwise “discriminated against” because they are absent from, or late to, work as a result of responding to an emergency. However, there are a number of exclusions and limitations on a volunteer/employee’s rights:

  • Notwithstanding this protection, an employee who is a volunteer emergency responder may not be absent from the employee's employment for more than 14 days in a calendar year without the employer's approval.
  • There is an exemption for employers with fewer than 50 employees.
  • The statute does not protect paid police officers, firefighters, EMS personnel or dispatchers, nor does it apply to “critical” employees whose absence could cause the employer “substantial and grievous economic injury,” jeopardize the safety and well-being of others, or “severely compromise” the employer’s ability to accomplish “mission critical functions.” Employers may still choose to allow an otherwise excluded employee to serve as a volunteer emergency responder, but, if it does so, the employee is then covered by the statute.
  • If reasonably possible, the employee must provide his or her employer with notice of absence or lateness. If notice is not practical, the employer may request, and the employee must provide, written verification of his or her participation in an emergency activity.
  • Employers need not pay employees for time missed in responding to an emergency and they may require employees to use accrued vacation or personal leave time.

This legislation further creates a civil action against the employer which must be brought in the county in which the place of employment is located. An employee who believes his or her employer has violated this law has 15 business days from the date of the alleged violation to bring a civil action against the employer for reinstatement, back pay, and lost fringe benefits and seniority rights. This applies only to a cause of action that accrues on or after the effective date of this legislation. Effective Date: Sent to the Governor, May 28, 2007; Effective September 1, 2007.

SB 311 – Reemployment Rights of Certain National Guard Members: The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) protects the jobs of reserve and guard members who are deployed to active duty. Under USERRA, Texas employers must ensure the reemployment rights of Texas guard members who work in Texas. However, USERRA does not extend those reemployment rights to persons who serve in the military forces of another state and work in Texas. SB 311 allows Texas employees to retain their jobs and benefits while serving in the military forces of Texas or any other state. Effective Date: Sent to the Governor, May 22, 2007; Effective upon signature of the Governor or June 17, 2007 if allowed to become law without signature.

Employment of Individuals with Criminal Records

HB 1241 – Maintenance of Records on Security Employees’ Criminal History: State law prohibits private companies from employing security personnel who have been convicted of a crime that would prevent them from registering under the Private Security Act. The new law now requires private employers to maintain a copy of the employee’s criminal history information on file. These records must be kept at the business and made available for inspection by the Department of Public Safety. Effective Date: September 1, 2007.

SB 199 – Certain Criminal Convictions Bar Employment Involving the Elderly and Disabled:  Amending the Health and Safety Code, SB 199 adds to the list of offenses that preclude a person from being employed to care for the elderly or disabled. The roughly 25 enumerated offenses include: homicide; kidnapping; indecency with a child; sexual assault; injury to a child or an elderly or disabled person; aiding suicide; arson; robbery; online solicitation of a minor; cruelty to animals; and “terroristic threat.” The statute also sets forth other offenses which bar individuals from such jobs within five years of their conviction.  Effective Date: September 1, 2007.