Texas’ New Employment Laws

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

The Texas 86th Legislature recently concluded with the passage of several new employment laws affecting private employers.

Disclosure of Information Regarding Sexual Misconduct

Effective June 10, 2019, a new law provides limited immunity from civil liability for disclosing certain information to designated persons regarding sexual misconduct by an employee, volunteer, or independent contractor of a charitable organization.

Disclosures protected by the new law are those made in good faith as to information reasonably believed to be true. A person is not immune from civil or criminal liability for acting in bad faith or with a malicious purpose.

The only persons to whom protected information may be disclosed under the new law are current or prospective employers of the charitable organization’s employee, volunteer or independent contractor.

The disclosures which may be made under the new law include allegations of (1) sexual misconduct, (2) sexual abuse, (3) sexual harassment, or (4) a sexual offense under the Texas Penal Code. Child abuse may be disclosed only if previously reported to an appropriate agency under Section 261.103 of the Texas Family Code. An individual is not immune from civil or criminal liability for reporting the individual’s own sexual misconduct.

Civil immunity under the new law extends to charitable organizations, and employees, volunteers and independent contractors of charitable organizations.

Jury and Grand Jury Service

Currently, Section 122.001 of the Texas Civil Practice & Remedies Code provides only that “[a] private employer may not terminate the employment of a permanent employee because the employee serves as a juror.”

A new law, which becomes effective on September 1, 2019, amends Section 122.001 to state that “an employer may not discharge, threaten to discharge, intimidate, or coerce any permanent employee because the employee serves as a juror, or for the employee’s attendance or scheduled attendance in connection with the service, in any court in the United States.”

Another new law, which becomes effective on September 1, 2019, amends Section 122.001 to include “grand jury” service.

Report of Child Abuse or Neglect

Currently, Section 261.110 of the Texas Family Code states that an employer may not suspend or terminate the employment of, or otherwise discriminate against, a person who is a professional and who in good faith … reports child abuse or neglect.”

A new law, which becomes effective on September 1, 2019, extends the prohibition of Section 261.110 to any adverse employment action. “Adverse employment action” is defined as “an employee’s compensation, promotion, transfer, work assignment, or performance evaluation, or any other employment action that would dissuade a reasonable employee from making or supporting a report of abuse or neglect…”

The new law also now enables a claimant to sue for injunctive relief.

Age Discrimination in Training

Currently, Section 21.054(b) of the Texas Labor Code limits the prohibition against age discrimination in certain employment training programs to “an individual who is at least 40 years of age but younger than 56 years of age.”

A new law, which becomes effective on September 1, 2019, repeals the age cap.

Minimum Wage for Disabled Workers

Section 14(c) of the Fair Labor Standards Act authorizes employers, after receiving a certificate from the Wage & Hour Division of the U.S. Department of Labor, to pay sub-minimum wages to disabled workers.

A new Texas law, which becomes effective on September 1, 2019, sets forth a mechanism for increasing the wages paid by community rehabilitation programs to the federal minimum wage not later than September 1, 2022.

Competition & Trade Secrets

An amendment to the Texas Citizens Participation Act clarifies that, effective September 1, 2019, the Act is not applicable to a legal action arising from an officer-director, employer-employee, or independent contractor relationship that (1) seeks recovery for misappropriation of trade secrets or corporate opportunities, or (2) seeks to enforce a non-disparagement agreement or a covenant not to compete.

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding labor & employment issues. To contact him for a speaking engagement please e-mail him at rchadwick@realclearcounsel.com

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Disgruntled Employees & Gun Violence: The Disturbing New Reality

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

In the aftermath of the mass shooting at a municipal building in Virginia Beach on Friday, May 31st which left twelve dead and others wounded, two familiar words were used to describe the gunman – “disgruntled employee.”

In the past two years, workplaces in Virginia Beach (May 31, 2019), Aurora, Illinois (Feb. , 2019), Harford County, Maryland (Sept. 20, 2018), Edgewood, Maryland (Oct. 18, 2017), San Francisco, California (June 14, 2017), and Orlando, Florida (June 5, 2017) have been victims of mass shootings by gunmen described as “disgruntled” current or former employees. Workplace shootings by “disgruntled” current or former employees have also occurred in Albuquerque, New Mexico (Nov. 13, 2018), Las Vegas, Nevada (April 16, 2018), Birmingham, Alabama (March 14, 2018), Taylor, Michigan (February 1, 2018), Nashville, Tennessee (Jan. 11, 2018), Houston, Texas (Dec. 29, 2017), Bronx, New York (June 30, 2017), New York, New York (Oct. 5, 2017), Charleston, South Carolina (Aug. 24, 2017), Cleveland, Ohio (June 15, 2017). and Dallas, Texas (April 24, 2017), amongst other locations.

So, why the surge in shootings? Postulations regarding the phenomenon of school shootings may provide an answer. In an October 12, 2015 New Yorker article, Malcolm Gladwell theorized that school shootings are akin to “a slow-motion ever-evolving riot in which each new participant’s action makes sense in reaction to and in combination with those who came before.” If this theory is accurate as to “disgruntled” workers, the explanation for past shootings also serves as an ominous sign of the future.

If employers have not yet become alarmed regarding the prevalence of workplace shootings, their employees certainly have. According to data compiled by the Society for Human Resources Management (“SHRM”) in 2019, approximately one out of seven Americans do not feel safe at work.  The same data indicates that nearly 50% of human resources professionals have experienced a workplace violence incident.  In a March 19, 2019 press release, SHRM President and CEO Johnny C. Taylor remarked: “This data shows we have a lot of work to do in terms of security, prevention, training and response.”

To be sure, not all gun violence is preventable by an employer.  An unavoidable consequence of the prevalence of gun violence, however, is the increasing pressure to hold employers legally responsible. As noted in another blog article by this author, the Occupational Safety & Health Administration (“OSHA”) can and has issued citations arising from workplace violence under the general duty clause of the Occupational Safety and Health Act. State worker’s compensation laws do not always insulate employers from wrongful death suits, especially in states where worker’s compensation insurance is optional.

With each new incident of gun violence, therefore, comes inevitable scrutiny as to the employer’s action or inaction beforehand. Increasingly, questions are being asked as to whether (1) the employer had a workplace violence prevention plan, (2) the “disgruntled” employee had a violent background before being hired by the employer, (3) the employer had policies and procedures regarding threats of workplace violence, (4) the employer had training for recognizing the signs of imminent violence, (5) there were any warning signs of violent behavior by the “disgruntled” employee, (6) the employer had security protocols for preventing firearms in the workplace, (7) the employer had security protocols for denying access to former employees, (8) the employer had a response plan, and (9) whether employees were trained as to the response plan.

The disturbing new reality for employers, therefore, is the immediate need to understand the importance and severity of the threat of gun violence by “disgruntled” workers. Guidance in this area is already available from OSHA and SHRM. From this guidance and legal advice, policies and procedures can be formulated by employers to mitigate the risk of loss of human life and legal liability.

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding labor & employment issues. To contact him for a speaking engagement please e-mail him at rchadwick@realclearcounsel.com