Proposed Regulations for White Collar Exemptions - Major Changes In Store

The oldest employment statute, the Fair Labor Standards Act of 1938, has been operated under substantive regulations that have not changed dramatically in the working lives of most current employees. One area of change, the so called white collar exemptions, has not had any substantial substantive re-writing since 1950, and the key dollar amounts, which were originally to be the primary indicator of status have not changed since 1975. Given the basic premise of the wage and hour law, this is a key set of regulations and change has been greatly needed. Under the wage and hour law, the initial presumption is that every employee is entitled to overtime compensation of 1.5 times their regular rate of pay for every hour worked over 40 in a work week. To avoid paying overtime, the employer has the burden of showing that the employee is exempt. By far the most common exemptions are the white collar exemptions for executive, administrative, professional and outside salesmen. The first three are sometimes referred to as EAP. After a few days of news releases and stories about the proposed changes, the actual proposed regulations are here in pdf or text format.


Briefly, the two part test (the long and short form) which had $155 and $250 figures to distinguish between them are now gone. As a practical matter, the long form test had not been utilized in years. There will now be a three tiered system for salaried employees who perform non-manual jobs:

up to $22,100, overtime is mandatory;

from $22,100 to $65,000, new white collar exemption rules will determine eligibility for overtime;

$65,000, no overtime, as long as employee performs one of the exempt duties listed under the executive, administrative or professional regulations.

In addition to the new three tier system and changes in the basic rules for determining whether some one is exempt under one of the regulations, the rules of what constitutes a salaried employee (still a pre-requisite for the EAP exemptions) have changed to ease the danger of losing the exemption on a large of class of employees inadvertently. Employers would also be allowed the right to suspend exempt employees for disciplinary reasons.


It should be stressed these are only proposed regulations and the Department of Labor has identified a number of areas where they specifically invite comments. The comment period runs through June 30th. Given the nature of the regulations and the major changes, there will almost certainly be a large number of comments. It is unlikely that the final regulations, which could possibly have substantial changes from this proposal, would be in effect before 2004 at the very earliest. Over the next few days I will take a look at some of the more specific provisions.

The Blogging Big Time!

Thanks to Howard Bashman's How Appealing mention of Jottings as today's Interesting Law Blog of the Day.

Academician Weighs In On English Only Rules

Judy Olian. Dean of Penn State University's Smeal College of Business and a leading expert on strategic human resources management, advocates more diversity training in an Albuquerque Tribune Online article focusing on several large cases involving English only rules.

Helmsley Gets to Pay More In Attorneys Fees, Than Award

I have previously noted the results of the lawsuit brought by a former employee of a Helmsley hotel, who convinced a jury that he had been discriminated against because he was gay. Now the court has awarded his counsel over $600,000 in attorneys fees. See the Daily news story. Its less than a 1/3 of what the lawyers requested, but more than the actual amount of the reduced verdict to the plaintiff. The second time this week we have reported on cases where the biggest winner was the plaintiff's counsel, not the plaintiff.

More On Wage and Hour Exemption Changes

Updating yesterday's note, the DOL has posted more information on the changes to the regulations on white collar employees, which is one of the principal factors in determining who is entitled to overtime and who is not. In their latest postings are an overview, a comparison of the new test and old test, a pie chart of the demographics of those who will now be eligible for overtime, and the DOL's news release about the changes. The full regulations (about 150 pages) will not published in the Federal Register until Monday. Just from a quick look at the comparison, it does not appear that a couple of issues that employers had hoped would be addressed have been dealt with. One is under the administrative regulation job duty test which appears to maintain the requirement that the job "be related to the management or general business operations of the employer or the employer’s customers." That test has been used by some courts to disallow exemptions because the employers were engaged in "production" type work, rather than business support positions. The other is that the outside sales exemption, still requires that the employee be "customarily and regularly engaged away from the employer’s place or places of business." Employers have long sought an 'inside' sales exemption as well. Although it may be elsewhere in the new regulations, it is not being featured in the material released so far.

Dardinger Case Update - No Challenge to Unusual Ruling on Punitive Damages

Rather than try to get the U.S. Supreme Court to hear the case, Anthem, Inc. has agreed to pay a $30 million dollar judgment that was affirmed by the Ohio Supreme Court. The Indystar has the story. The unusual aspect of the Ohio Supreme Court decision was the court's common law adoption of a split of the punitive damage awards, requiring that a part of it go to a charitable foundation designated by the Court. See the earlier report in Jottings for a link to the decision and why it was unique.

9 Lives for Duffield in the 9th Circuit?

The 9th Circuit had en banc arguments yesterday in EEOC v. Luce, Forward. As noted in Jottings last September, the panel opinion bowed to the weight of the Supreme Court's pro-arbitration decisions and had tried to bring the 9th Circuit into line with every other circuit court, holding that employees could be required to arbitrate Title VII claims as a condition of employment. In February, hearing en banc was granted, reviving Duffield. According to the report at law.com, at least a majority of the en banc panel appears headed to finding its decision in Duffield still lives. If it weren't for the confusion and the cost it causes, having a large segment of the country taking a different path from the rest of the world, would be comical. Of course, if that view should ultimately prevail at the Supreme Court, then rather than comical it would be a story of judicial fortitude and correctness. In today's environment, I know how I would place my wager. But as times and courts change, who knows; for the anti-arbitration forces, keeping the issue alive could prove to be a major victory.

This Could Be Big News! White Collar Exemption Rules To Change

The long awaited proposed regulations from the Department of Labor to change the white collar exemptions will soon be released. Here is a report from the Sun-Sentinel:. One of the ideas is to simplify the process, providing a bright line. Here's a quote as to what will happen: "The proposal would raise the salary cap to $425 a week, or $22,100 a year, and any worker earning less automatically would be required to receive overtime pay." There will be a chance to comment, but you can start seeing how this would impact you.


Update: According to BNA's Daily Labor Report, the regulations will be published on Monday, March 31. Details when they are released.

Michigan Study Finds Discrimination Now More Subtle

Not surprisingly, a large scale study on discrimination in employment practices conducted in Kalamazoo, Michigan has concluded that where such discrimination exists, it is often quite subtle. Ed Finnerty's story in the Kalamazoo Gazette reports on a study originally created by Western Michigan University researchers for the Michigan Department of Civil Rights. It was modified to focus on employment discrimination.


Leslie Rose McDonald has a story about the impact of subtle, but not illegal, practices on employees in today's Syracuse's Post Standard. Unfortunately, the law is not nearly as good dealing with subtle issues as it is with blatant acts. I think both stories raise some of the reasons why many with different perspectives, employers, employees, courts and lawyers on both sides of the docket, are dissatisfied with the present system of employment law.



Update: Thanks to Ed Finnerty here is a link to the Kalamazoo study. [pdf]

Talk About A Contingency Fee!

A successful plaintiff, who had second thoughts about her attorney, learns a hard lesson about the power of a contingency agreement. She won her Title VII discrimination case at trial, receiving an award of $34,637.84. The defendant was also required to pay $35,775.00 in attorneys fees. In addition, the plaintiff employee received a promotion as a result of the action. After a post-hearing contempt proceeding, both the judgment and the attorneys fees award were increased, the judgment to $49, 769.11, and an additional $915 in fees.


During the course of the contempt proceedings, plaintiff discharged her counsel who promptly intervened for his attorneys fees. He sought not only the court awarded fees of over $36,000, but 35% of the $49,769.11 ($17,419.19) based on his contingency agreement. It provided he would be entitled to "thirty-five (35%) percent of any amount recovered or saved after suit if [sic] filed, excluding court awarded attorneys fees". Another part of the retainer agreement provided "[i]t is specifically understood that all court awarded attorneys fees are and shall remain the property of attorney."


Both the district court and the Fifth Circuit enforced the contingency agreement. Gobert v. Williams (5th Cir. 3/26/03). The plaintiff employee tried to argue that her counsel was limited to a 'reasonable attorneys fees' under Title VII and that was the court determined amount. Noting that the Supreme Court had already decided this issue, the court replied that the question was not the reasonableness of what the defendant employer had been required to pay, but what she had agreed to pay her attorney. And as the Supreme Court had said, "there is nothing in [' 2000e-5(k)] to regulate what plaintiffs may or may not promise to pay their attorneys if they lose or if they win." Net result, one happy attorney; one unhappy, albeit promoted employee. To save you from doing the math, final totals:

Plaintiff's lawyer -- $54,109

Plaintiff -- 32,349.92

And of course the employer was not all that happy either.

Employer's Evidence of Poor Performance Not Enough At Prima Facie Stage

In Ellison v. Sandia National Laboratories (10th Cir. 3/3/03), the court reminded lower courts that establishing the element of a prima facie case under McDonnell Douglas, especially under the criteria that the employee was doing satisfactory work was not meant to be difficult. In fact, the court found it error to consider the employer's evidence of poor work performance at the prima facie stage. All that was necessary for the plaintiff was to show by his own testimony his work was satisfactory or that he still possessed the objective credentials for the position. All is not lost however, nor was it here, because the employer's evidence of unsatisfactory performance which was not rebutted as pretext, was sufficient to carry the day.

Blawgs Gathered At the Daily Whirl

If you haven't checked out the newest, and one of the slickest, collection of blawgs on the net, please head over to The Daily Whirl. And of course, please feel free to include Jottings as one of your regular information sources. Right now there seems to be some problems with my RSS feed as the latest posting they show is one from February, but hopefully that will get sorted out soon.

Climate for Complaints?

When employees worry about their future, there are two schools of thought on what may happen. One school is that employees hunker down, try to keep a low profile and not make waves. Another is that they tend to act out and seek ways to protect themselves. Neither approach is good for productivity. While I tend to believe more employees adopt the hunker down style, there is no question that some will act out. If the results from a global survey are correct, we may all have a chance to see which is more prevalent in the near future. According to a survey by Right Management Consultancy reported in the Financial Times one out of four Americans fear they will lose their job this year. Thanks to the M. P. Catherwood Library at the Cornell School of Industrial & Labor Relations for picking up this article. Only British workers have a greater level of anxiety. Not a positive note for employers in these already trying times.

How the Internet Is Changing the Employment Law World

Cintas, a large uniform maker has been sued by a group of employees claiming they were misclassified as exempt employees to avoid paying them overtime. The AP story is at the Findlaw Corporate Counsel Center, a collection of articles of interest to corporate lawyers. But other sites focus on information and assistance to the claimants and potential claimants in such matters. At a site simply called bigclassaction.com, the action taken against Cintas is described along with others. Following the internal link takes you to this point: Cintas overtime Class Action. Submit your complaint. And just in case you might not meet the particulars of the suit filed, there is an invitation to send in any other complaint you might have. According to the website, here is what happens if you submit a complaint:

Please note: if the information you fill in on the form for a pending class action does not match the description of the class, it will not be forwarded to the law firm handling that particular action. We will, however try to find a lawyer to review your complaint.

If you are registering a complaint for a possible class action, your registration may be forwarded to one or more attorneys. An attorney will contact you only if they are interested in pursuing your case, or if they need additional information.

All kinds of suits are included on this site, but just focusing on the employment law ones, there are classes for cases settled, cases pending and most intriguing "Join a group of people seeking a class action against" which is a list of both specific companies, or more generally, specific types of claim such as overtime violations or employers who allegedly practice race or sex based wage discrimination. Check here to see if you make the target list.

Weird Things in the World of Employment Law? No Way!

Actually, one of the best things about the employment law practice is that you never cease to be amazed at what can happen in the workplace. Just when you think you have seen and heard it all, something tops it. Fortunately, the National Law Journal's annual survey captures a few of last year's more unusual moments.

You Don't Need Sarbanes-Oxley For This

The Mercury News has the story of a 22 count indictment of the CEO of U.S. Technologies. Just because $15 million went missing and a portion of it somehow found its way to his children's trust fund.

Access to Internet At the Library - The Workplace Dimension

According to the Minneapolis Star Tribune a dozen Minneapolis librarians have filed suit against the library system saying their exposure to pornography constituted sexual harassment. An instance of an employer being caught in the middle (and I am sure it must seem the cross-hairs) of national issues that many have strong feelings about.

U.S. Government to Argue That FLSA Cases Are Removable

The Supreme Court today granted [p. 2 pdf] the Solicitor General's motion to participate in oral arguments in Breuer v. Jim's Concrete which will be heard on April 2, 2003. Earlier, the Solicitor General filed an amicus brief in support of the respondent's position that Fair Labor Standards Act cases filed in state court can be removed to federal court on the basis of federal question jurisdiction. The petitioner's argument relies on the language of the FLSA, ""[a]n action to recover * * * may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees." 29 U.S.C. 216(b).


In the brief, co-signed by the Acting Solicitor of Labor, the importance of having uniform interpretations of the FLSA is pointed out. Making the case even more important, it suggests that the outcome of the decision could also determine whether cases brought under the FMLA and the Employee Polygraph Protection Act can be removed since they contain similar language. Even more broadly, it raises the possibility it could impact removal under Title VII and the ADEA, even though those statutes have slightly different standards. Since it seems to me that removal is clearly appropriate, and because the Supreme Court has in the past taken a narrow view of removal statutes, it is certainly good for the Solicitor General to be weighing in, given the support for removal. Hopefully, this will be one case the Supreme Court grants writ where it does not reverse the lower court.

Rights of Reservists - Timely Message

A number of papers have timely stories on the employment law issues surrounding reservists who have or may be called on during the Iraqi conflict. Among the papers with stories are the The Birmingham Business Journal, the Pittsburg Morning Sun, the Oregonian and the Champaigne, Illinois News-Gazette.

Blawgistan - A Technical Challenge

Once upon a time I commented that if I could make sure my feed were found and could become listed anyone could. I did, proving the utter simplicity. But since then I seem to have gone astray, and have returned to my normal level of technical competency. It is a cool collection though and I did manage to add its RSS feed to my newzcrawler list, so even if I don't appear, I can at least see what is going on in the rest of the world of law blogs.

New Mexico Passes Prohibition on Discrimination Against Gays

Although it turned out to be a little harder than it appeared a month ago, see Jottings on 2/24/03, the Santa Fe New Mexican is reporting that with a little legislative maneuvering and compromise, a measure made it to the Governor's desk who should sign it.

Settle Not Fight, One Opinion

Whether or not settling a charge of discrimination will lead to others is often something that employers must decide in making that decision. In a Chicago Tribune story, one lawyer weighs in with these money quotes:

"It's not contagious," said Steven Adelman of Lord, Bissell & Brook. He also advised associations against going to litigation out of principle to counter claims of bias. "Don't fight just to fight. It's too expensive," he said.

Are We Any DIfferent From the Brits?

About discrimination in the workplace, not Iraq. A recent survey of 600 English employees show 40% feel they have suffered some form of discrimination at work. The study by the Chartered Institute of Personnel Development (CIPD), is being reported on the website for HR Professionals, Personnel Today.com.

Not A Pretty Picture of the LAPD - Cost $3.5 Million

The AP has the story of yesterday's verdict. Jury orders LAPD to pay $3.5 million in discrimination suit to Officer Richard Nagatoshi for racial discrimination, harassment and retaliation. And again, an employee who still has his job, just not his dignity. It should be clear by now how much value juries put on the latter.

Sarbanes-Oxley Whistleblower Final Regulations

Although the Sarbanes-Oxley statute itself is not mentioned, the DOL has now issued its final rule, effective March 21, 2003, governing the investigation and processing of whistleblower claims under Sarbanes-Oxley. See today's Federal Register. The regulations refer to whistleblower claims brought under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, but in passing Sarbanes-Oxley, Congress prescribed that rules and procedures under the Aviation Act, would also govern the administrative procedures for whistleblower complaints under Sarbanes-Oxley. The regulations will be codified at 29 C.F.R. Part 1979. One difference is that if the administrative procedures are not completed within 180 days of filing the complaint with OSHA, the Sarbanes-Oxley whistleblower is permitted to file an action in federal court.

If Your Friendly EEOC Representative Seems A Little Distracted

It may be because of a recent study reported in the Kansas City Star which recommends that the agency close a number of its field offices. Only the first step of a long process according to EEOC Chair Cari Dominguez. For the full report go here [pdf], or for a quick read try the executive summary. [pdf]

Million Dollar Verdict Close to Home- Fired Seitel Executive Wins $4 million Award

In a city that has been inundated with the tales of the misdoings of high level executives at various companies, you might not have expected much sympathy for a CFO who was forced out of the company under allegations of having wrongfully used company funds. However, a Houston jury did not seem to let it bother them as shown on their verdict reported in the Houston Chronicle. The jury found a breach of her severance agreement and also found that Debra Valice had been defamed by the comments of her former employer. But the jury also apparently found she had violated her fiduciary obligations to the company and awarded it over $600,000 which at a minimum should offset the approximately $4 million awarded her. Much more to this story before it is finally put to bed as the company is already suggesting an inconsistency in the verdict, which will no doubt lead to post-trial motions and an appeal by some one.

WARNing for Brobeck, and Maybe Morgan, Lewis & Bockius

At least that's the hope of Mark Thierman, a Reno lawyer who has filed suit against both law firms on behalf of former Brobeck employees, claiming a WARN act violation. See the story atlaw.com. If litigated it could flesh out the rather sparse law on a couple of WARN points, what are the parameters of the failing business exception and the reach of successor liability. My guess is that neither whatever remains of Brobeck or Morgan, Lewis are that eager to help clarify the law in their capacity as a party defendant.

Violence in the Workplace - Abroad As Well

None of us are likely shocked by the death of an employee deployed to the Middle East given the climate that exists. We might be more surprised though if we knew the reason was the same as that which often sparks domestic workplace violence, depression and retaliation for those who complained about him at work. According to the Dallas Business Journal those factors, other than some political or religious motivation, was what led to the death of an American employee of Hunt Oil who was supervising a drilling rig in Yemen. Also killed by the Yemeni carpenter before he killed himself, was a Canadian citizen and a fellow Yemeni.

An EEOC Press Release With A Difference - McDonald's Franchisee Sued for ADA Based On Birthmark

Not much needs to be added to the press release about a claim being brought by the EEOC on behalf of Samantha Robichaud. Obviously, there are two (or more) sides to any story, and you are only getting one in the press release from the EEOC. Both the Birmingham News and the Tuscaloosa News have stories as well. This invokes the third prong of the definition of a disabled individual under the ADA, "regarded as having such an impairment", and is clearly the type of suit that when the ADA was passed many expected would be covered. But given the strict reading of "impairment", it is likely there will be a substantial legal battle to establish "disability" as well as the factual issue of causation.

Calculate the Cost and Benefit of a Layoff

If you ever wanted a calculation check list in trying to decide about the benefits of a reduction in force, workforce.com has one:Calculate the Cost and Benefit of a Layoff. Obviously, a rough estimate at best, and there could certainly be other items added. For example, no mention of the costs of possible claims of discrimination. But at least a starting point.

EEOC Investigations - What An Employer Should Know (According to the EEOC)

The EEOC has a new web page describing its role in investigations. EEOC Investigations - What An Employer Should Know.

Facts Bearing Out All the Seminar Talk of Age Discrimination

I have often joked I can tell what is going to be a hot area merely by paying attention to the numerous seminar brochures that cross my desk and noting the topics that speakers across the country are going to be talking about. Recently, that would have indicated that age discrimination was going to be on the rise, with the title usually making a cute association with the aging of the baby boomers. In this case, the numbers as well as the anecdotal evidence, are establishing that this is more than just seminar talk. Just an example is the story, As Layoffs Rise, So Do Age-Discrimination Charges in the business section of today's New York Times.

More Fun For Employers: If You Thought Napster Was A Problem

The Mercury News has the story of an even more prolific use of file sharing networks, you guessed it - porn. So how much do you know what your employees are up to? And since you could know, should you? But if you know or could know, and do nothing, what is your liability? Difficult questions, but ones you ought to be talking to your IT department about.

Unhappy With Unemployment System in Texas?

There is almost always room for improvement, but overall things seem to be going pretty well, at least that seems to be the view of Representative Jim Keffer (R- Eastland) who presides over the House Economic Development Committee which is taking up the Sunset Review of the Texas Workforce Commission. A less complimentary view is taken by the Texas Association of Business as reported in today's Austin Business Journal.

Basically, It's About Fairness

When I give speeches about trying an employment law case, I frequently say that all the plaintiff's attorney wants to do is avoid summary judgment and be in front of the jury arguing about fairness. I have been pleased to hear a number of plaintiff's employment lawyers say the same things. Rather than being a great insight, maybe that is just stating the obvious. At least that seems to be the view of one successful plaintiff, Rose Hershberger, now 76 who sued Maryland based Hanger Prosthetics & Orthotics Inc. for her termination after she fell and hurt herself at work. After being out to recover, she was told her position was eliminated when she returned. According to the Birmingham News a Jefferson County, Alabama jury awarded her $150,000 in actual damages and $850,000 in punitive damages for her termination. But she was the one with the real money quote

"They are a very, very big company with a lot of offices all across the country and, for the average worker I think it's important that an employer pay attention to the employee and is fair.... That's all anybody ever wants is fairness. That's basically what it was all about from beginning to end."

The lesson to be learned is the importance of always remembering that no matter what legal question a jury is asked, in an employment law case, often the real question is: was this fair?

78th Texas Legislature - All Bills Now Filed

Updated: April 13, 2003 - Actions taken this past week are in BOLD.


For all practical purposes, all legislation that will be considered this session has now been offered.


House of Representatives

H.B. 50 Sylvester Turner (D – Houston) Mandatory leave for employees to attend school conferences, and penalties against retaliation for exercising that right. Referred to Economic Development. Public hearing on March 19, 2003 left pending in committee.

H.B. 105 Norma Chavez (D - El Paso) Provides for unemployment benefits, without charge to an employer's account, if an employee is forced to leave employment because of domestic violence. Referred to Economic Development.

H.B. 126 Lon Burnam (D - Fort Worth) Requires parity for mental illness in disability insurance policies sold in state of Texas. Referred to Insurance.

H.B. 152 Ron Wilson (D – Houston) Limits an employer's ability to obtain so called 'dead peasants insurance,' where an employer obtains a policy on lower paid employees with itself as a beneficiary. Referred to Insurance. Public hearing on March 10, 2003, pending in committee

H.J.R. 18 Suzanna Hupp (R – Lampasas) A constitutional amendment to grant a broad right of privacy. In California, a similar constitutional amendment was used as a basis for finding the constitutional right of privacy extended to non-government employers. Referred to State Affairs. Testimony taken on March 3, 2003. Still pending in committee.

H.B. 181 Jessica Farrar (D – Houston) Allows an individual who receives deferred adjudication to legally deny the arrest and prosecution, except for a subsequent criminal prosecution. This would impact information employers are able to obtain when hiring. The bill passed last legislative session, but was vetoed by Governor Perry. Correction of referral, now referred to Law Enforcement. Public hearing on March 17, 2003, committee substitute considered in committee, still pending in committee.

H.B. 281 Paul Moreno (D – El Paso) This is not technically an employment bill, but is likely to be one of the most talked about and contested non-financial bills of this session. It would make it a misdemeanor (punishable by a $100 fine) to talk on a mobile phone when driving, unless the car is stopped or the phone is operated without the use of either hand. Referred to State Affairs. Testimony taken on March 3, 2003, still pending in committee.

H.B. 328 Warren Chisum (R – Pampa) An attempt to allow employers the opportunity to obtain information from applicants about prior workers compensation claims and injuries. The legislation modifies the Texas Commission on Human Rights Act and the Texas Workers Compensation Act, but unfortunately can not shield employers from the Americans with Disabilities Act which prohibits such inquiries. Referred to Business & Industry. Testimony taken on March 4, 2003 still pending in committee.

H.B. 355 and H.B. 356 Harold Dutton (D – Houston) These are two education leave bills, similar to some of the amendments that have been suggested for the federal Family Medical Leave Act. One would require employers to give time off to employees to meet with teachers, counselors or principals; the other to attend certain school activities. The bills also create new causes of actions against employers for refusing to provide the time off. Referred to Economic Development. Public hearing on March 19, 2003, pending in committee.

H.B. 359 and H.B. 371 Harold Dutton (D – Houston) These two bills attempt to limit the use of mandatory arbitration. The first would prohibit arbitration of Texas Commission on Human Rights Act or Title VII claims, the second would prohibit mandatory arbitration until an employee had worked for an employer for at least 90 days. Even if these bills were to pass, if the agreement were covered by the Federal Arbitration Act, these restrictions would be pre-empted. Most, but not necessarily all, employment relationships will be covered by the FAA. Referred to Economic Development. Public hearing on March 19, 2003, left pending in committee.

H.B. 379 Harold Dutton (D – Houston) Requires employers to allow employees to review their personnel files. Similar legislation has been offered for several sessions. It would make failure to comply by the employer an unfair employment practice, which is treated as a violation of the Texas Commission on Human Rights Act. Referred to State Affairs.

H.B. 570 Fred Brown (R –Bryan) For non-subscribers to workers compensation, the bill would cap liability at $250,000 for work place injuries to employees. In order to qualify for the cap, the employer must have insurance meeting certain limits. Referred to Business & Industry. Public hearing of April 1, 2003 withdrawn from the schedule.

H.B. 574 Jessica Farrar (D – Houston) Amends the Texas Commission on Human Rights Act to prohibit discrimination against individuals on the basis of their sexual orientation or gender identity. It would also protect anyone from being treated differently because of the sexual identity of individuals with whom the employee associates. Referred to Business & Industry. Public hearing on March 25, 2003, left pending in committee.

H.B. 624 Jose Menendez (D - San Antonio). Basically a refined version of Representative Moreno's H.B. 281 which prohibits use of mobile phones while driving. This version has more definitions, some exceptions for emergency calls, and a range of fines that increases if the violation occurs in a school zone. Referred to State Affairs. Testimony taken on March 3, 2003, still pending in committee.

H.B. 643 Arlene Wohlgemuth (R - Burleson) A technical amendment to the punitive damages cap. Currently, the cap is not applicable where the defendant engages in certain criminal activity. The amendment would require a conviction before the cap would not be applicable. Under the current law, plaintiffs are able to argue that certain conduct should be outside the cap because it meets the literal language of the current statute, even though there has been no criminal prosecution. Referred to Civil Practices.

H.B. 705 Burt Solomons (R - Carrollton) Provides a defense against a claim of negligent hiring for employers whose employees enter another's home for purposes of repairs or delivery of goods. The defense would only be available if the employer obtained a criminal record from the Department of Public Safety. The bill gives the employer the right to have that access. Referred to Civil Practices. Public hearing held on April 2, 2003, left pending in committee.

H.B. 772 Dawnna Dukes (D - Austin) Similar to H.B.105, would allow an employee to quit a job if advised to by a law enforcement officer, a licensed medical practitioner or a licensed counselor because of domestic violence or stalking and still receive unemployment benefits. The employer's account would not be charged. Referred to Economic Development.

H.B. 804 Charlie Geren (R - Fort Worth) Amends Texas minimum wage law to pre-empt any city ordinance setting a minimum wage. It does not apply to government contracts or tax-abatement agreements. In light of recent adoption of a living wage ordinance by Santa Fe, New Mexico, this bill may now get more attention.Referred to Economic Development. Passed on April 8, 2003 and sent to the Senate. Legislative exchange made it clear that it does not apply to living wage ordinances which set a higher minimum wage for any local governmental entity.

H.B. 810 Eddie Rodriguez (D - Austin) Prohibits discrimination by state agencies on the basis of sexual orientation or gender identity. Referred to State Affairs.

H.B. 812 Roberto Gutierrez (D - McAllen) Provides that 75% of any award of punitive damage award will go to the Permanent University Fund. The plaintiff would receive 15% and plaintiff's attorney 10%, notwithstanding any other contractual agreement. Referred to Civil Practices.

H.B. 826 Yvonne Davis (D - Dallas) Requires employers to turn over any abandoned wage payments to the State Comptroller. Referred to Economic Development. Scheduled for public hearing on April 9, 2003.

H.B. 945 Lon Burnam (D - Fort Worth) Would set a minimum wage for state and local governments. The minimum wage would be the higher of the federal minimum wage or one calculated based on the federal poverty guidelines. Based on the 2002 guidelines, the minimum wage would be $8.70. Referred to State Affairs. Public hearing on April 7, 2003, pending in committee.

H.B. 978 Dawnna Dukes (D - Austin) Restrictions on certain business entities being the designated beneficiary of life insurance policies. Referred to Insurance.

H.B. 995 Ken Mercer (R – San Antonio). Expands the public whistle blower statute to also include protection from retaliation for reporting a waste of funds to an appropriate governmental agency. Referred to Government Reform. Public hearing on April 8, 2003, pending in committee.

H.B. 1018 Mike Villarreal (D – San Antonio) Would provide a preference by state and local governments for vendors who were certified as family friendly by the Texas Workforce Commission for providing employee dependent care benefits. Public hearing on March 10, 2003, pending in committee.

H.B. 1045 Joe Deshotel (D – Port Arthur) Creates an alternative base period for computation of unemployment compensation benefits to remove a period of extended medical disability. Referred to Economic Development. Public hearing on March 12, 2003, pending in committee.

H.B. 1136 Mike Villarreal (D – San Antonio) Prohibits discrimination in employment, housing or public accommodations because of sexual orientation. Referred to State Affairs. Scheduled for public hearing on April 16, 2003.

H.B. 1142 Glenn Lewis (D – Fort Worth) Requires health insurance plans to provide for an annual physical with certain basic lab tests. Referred to Insurance.

H.B. 1221 Barry Telford Prevents a chargeback to an employer's account if unemployment benefits are provided because the employer was called to active duty military service after January 1, 2003. Referred to Defense Affairs & State-Federal Relations. Passed the House on April 3, 2003. Referred to Veteran Affairs and Military Installations.

H.B. 1244 Senfronia Thompson (D - Houston) A repackaged version of comparable worth. Prohibits discrimination in compensation by paying less to a person in a protected class for a person in an equivalent jobs under similar conditions. The amount of litigation and control of the workplace that this would create is almost unimaginable. It was a bad idea when first introduced and has gotten no better over time. Referred to Economic Development.

H.B. 1245 Terri Hodge (D - Dallas) Amends the unemployment statute to allow workers who are locked out by their employer, or who are idled because of a work stoppage at another location to receive unemployment compensation benefits. Referred to Economic Development.

H.B. 1282 Brian McCall (R - Plano) This is not an employment bill, but an anti-spam one, so certainly one worthy of watching from at least my mailbox's perspective. Referred to Economic Development. Passed by the House on April 3, 2003. Referred to Business and Commerce.

H.B.1359 Aaron Pena (D - Edinburgh) Would make it more difficult to offer evidence of past sexual conduct in civil related cases by adopting the standards and procedures of Rule 412 of the Federal Rules of Evidence. This is the first employment related bill offered by Representative Pena, who in his day job, is the leading plaintiff's employment lawyer in the Valley. Referred to Civil Practices. Scheduled for public hearing on April 16, 2003.

H.B. 1360 Aaron Pena (D - Edinburgh) Amends existing state law with respect to penalties for discrimination against national guard personnel, by removing the current cap on damages which was limited to six months pay, adding punitive damages and utilizing the caps applicable to TCHR claims based on number of employees, with a maximum of $300,000 for compensatory and punitive damages by employers with more than 500 employees. An interesting choice, since it will be hard to argue against increasing penalties against employers who discriminate against those who might be called to serve in the Iraq conflict. Referred to Defense Affairs and State-Federal Relations. Public hearing on March 20, 2003, left pending in committee.

H.B. 1496 Burt Solomons (R - Carrollton) Establishes a study to review and propose legislation to strengthen the anti-abuse provisions of the unemployment compensation laws, including increasing collections of overpayments. Referred to Economic Development. Scheduled for public hearing on April 9, 2003.

H.B. 1524 Senfronia Thompson(D - Houston) Amends the Texas Commission on Human Rights Act to make it illegal to inquire of an applicant, or of any person who knows the applicant, about their sexual orientation. Referred to State Affairs.

H.B. 1550 Bill Zedler (R - Arlington) Prohibits unions from spending any portions of dues for political purposes without obtaining a specific authorization from the union member. Referred to Economic Development.

H.B. 1645 Kevin Bailey (D - Houston) Would remove the restriction on subdivisions of the state from entering into collective bargaining agreements. Although this would not directly impact private sector employers, if it were to pass, it could improve the climate for unions in Texas. Referred to County Affairs.

H.B. 1684 Beverly Woolley (R – Houston). Amends the TCHRA so that the issuance of a right to sue letter by the EEOC would also trigger the 60 day deadline for filing a lawsuit under the TCHRA. This would be extremely helpful in making sure that lawsuits are timely filed and eliminate a major flaw in the current situation. Referred to Economic Development. Set for public hearing on April 9, 2003.

H.B. 1819 Rene Oliveira(D - Corpus Christi) Allows unemployment compensation for those who lose their jobs because of a disaster declared by the Governor. Referred to Economic Development. Passed by the House on April 3. 2003. Referred to Business & Commerce.

H. B. 2001 Harold Dutton (D - Houston) Adds a federal medical support notice to the requirement that employer’s must follow in withholding from their employee’s. Referred to Juvenile Justice & Family Issues. Reported favorably by Committee and sent to Local & Consent Calendar on April 11, 2003.

H.B. 2028 Aaron Pena (D - Edinburg) Although applicable only to local governments, this is noteworthy of the type of legislation that may be offered by Representative Pena, who is also an employment lawyer representing employees. This legislation establishes a Sabine Pilot cause of action for employees who are required to commit an illegal act. Unlike the common law version, it does not have a sole cause standard. It also establishes punitive damage caps tied to the size of the agency, provides for civil penalties and under certain circumstances would require an audit of a local government that has been found liable and assessed damages of more than $10,000. Referred to State Affairs.

H.B. 2170 Burt Solomons(R - Carrollton) Sunset legislation concerning the renewal of the Texas Workforce Commission. Contains a number of substantive changes. Referred to Economic Development. Set for public hearing on April 9, 2003.

H.B. 2347 Sid Miller (R - Stephenville) Provides that all punitive damages go to the state general fund. Referred to Civil Practices.

H.B. 2395 Frank Corte (R - San Antonio) Would substantially rewrite the common law of defamation by requiring that there be a request for correction or clarification of defamatory statements, and limiting recovery to actual damages if a correction or clarification were made in a timely manner. Referred to Civil Practices. Scheduled for public hearing on April 16, 2003.

H.B. 2698 Ryan Guillen (D - Rio Grande City) Eliminates the 7 day waiting period for unemployment compensation. Referred to Economic Development.

H.B. 2933 Kino Flores (D - Mission) Transfers the Texas Commission on Human Rights to the Attorney General. Referred to Government Reform.

H.B. 2949 Reuben Hope (R - Conroe) Requires that a waiver of right to a jury trial use specific language and be in 16 point type. Part of the required statement is that the waiver is not required by law. Referred to Civil Practices. Public hearing held on April 9, 2003, pending in committee.

H.B. 3060 Kino Flores (D - Mission) Limits liability of employer utilizing a staff leasing company to those items for which it has contracted to pay. Correction in referral, now referred to Licensing & Administrative Procedures.

H.B. 3065 Joe Deshotel (D - Port Arthur) Would require that any jury mirror the racial and ethnic make up of the county in which it is picked. Referred to State Affairs.

H.B. 3160 Jaime Capelo (D - Corpus Christi) Would remove the restriction on subdivisions of the state from entering into collective bargaining agreements. Although this would not directly impact private sector employers, if it were to pass, it could improve the climate for unions in Texas. Referred to County Affairs. Public hearing scheduled for April 9, 2003.

H.B. 3220 Dwayne Bohac (R - Houston) Amends the workers compensation statutes to allow for a request for clarification on a determination of maximum medical improvement and related technical changes. Public hearing scheduled for April 15, 2003. Referred to Business & Industry.

H.B. 3278 Ryan Guillen (D - Rio Grande City) Creates a cause of action for employees terminated because they are served or comply with a subpoena. Referred to Business & Industry.

H.B. 3308 Jaime Capelo (D - Corpus Christi) Amends the Texas Payday Act to allow payment by direct deposit. Referred to Economic Development.

H.B. 3379 Norma Chavez (D - El Paso) Amends the Texas Commission on Human Rights Act to prohibit an English only rule, with certain exceptions. Referred to Economic Development.

H.B. 3401 Bill Zedler (R - Arlington) Repeals the little "Davis Bacon" laws which require a prevailing wage for certain governmental contracts. Referred to Economic Development.

H.B. 3430 Trey Martinez Fisher (D - San Antonio) Amends the Texas Arbitration Act to make it more difficult to require arbitration of consumer matters where less than $50,000 is involved, adds additional standards for appeal, including an additional standard of review based on the correctness of the arbitration award itself, and allowing an appeal of denial of a motion to compel even when the Federal Arbitration Act is applicable. Referred to Civil Practices.

H.B. 3462 Mike Villarreal (D - San Antonio) Amends the Texas Commission on Human Rights Act and the Workers Compensation Act to make it clear that an employee's immigration status alone does not bar him from being covered. Referred to Border and International Affairs. Public hearing held on April 2, 2003. Committee substitute reported favorably on April 2, 2003. Vote reconsidered on April 3, 2003 and left pending in committee.

H.B. 3463 Mike Villarreal (D - San Antonio) Couples a prohibition against sexual orientation or gender identity discrimination (including a prohibition against discrimination because of the gender identity or sexual orientation of those the employee associates with) with a prohibition against recognition of same sex marriages. Referred to State Affairs.

Senate

S.B. 33 Judy Zaffirini (D – Laredo) Establishes a right to leave to attend certain school functions for employees. Referred to Business & Commerce.

S.B. 61 Judy Zaffirini (D – Laredo) Modifies the existing law on criminal background checks for nursing home employees and applicants. Referred to Health and Human Services.

S.B.137 Rodney Ellis – (D- Houston) Prevents employers from obtaining 'dead peasant's insurance.' Referred to State Affairs.

S.B. 328 Royce West (D - Dallas) Requires an arbitrator and/or arbitration services provider to file a public disclosure within 30 days of the entry of the award by the arbitrator. Failure to do so could result in a fine, and multiple failures could result in the arbitrator being barred from court ordered arbitrations and being listed on a public list maintained by the Office of Court Administration. The disclosure would require the names of the parties, the general nature of the claim and the relief sought, the award by the arbitrator and the costs charged by the arbitrator and the arbitration services provider. It is designed to be a supplement to existing arbitration laws, including the Federal Arbitration Act. Referred to Jurisprudence.

S.B. 374 Tommy Williams (R - Woodlands). Limits liability of employer utilizing a staff leasing company to those items for which it has contracted to pay. Passed the Senate and sent to the House. Correction in referral, now in Licensing & Administrative Procedures.

S.B. 390 Rodney Ellis (D - Houston) The first Senate bill to prohibit use of a cell phone while driving. Referred to Criminal Justice.

S.B. 819 Troy Fraser (R - Horseshoe Bay) Amend workers compensation statute so insurance carrier can challenge compensability even if it misses the seven day deadline for beginning benefits or contesting the injury. Although able to challenge compensability, missing the deadline would constitute an administrative violation. Referred to State Affairs.

S.B. 820 Troy Fraser (R - Horseshoe Bay) Amends workers compensation statute to make first impairment rating final if an objection is not filed within 90 days. Referred to State Affairs.

S.B. 844 Gonzalo Barrientos (D - Austin) Would remove the restriction on local governments from entering into collective bargaining agreements. Although this would not directly impact private sector employers, if it were to pass, it could improve the climate for unions in Texas. Referred to Intergovernmental Relations.

S.B. 956 Robert Duncan (R - Lubbock) Directs the state auditor to study ways of improving collection of overpayments of unemployment compensation and for the Texas Workforce Commission to implement those methods. Referred to Business & Commerce.

S.B. 981 Kim Brimer (R - Fort Worth) Amends the unemployment compensation statute to remove disqualification because of a labor dispute at another facility. Referred to Business & Commerce.

S.B. 997 Royce West (D - Dallas) Requires an arbitrator to provide certain information about an arbitration, including a copy of the award, to the Office of Court Administration within 31 days of the award. Would allow parties to request that the record be sealed under the same standard applicable to court documents. Referred to Jurisprudence.

S.B. 1190 Eddie Lucio (D - Brownsville) Allows unemployment compensation for those who lose their jobs because of a disaster declared by the Governor. Referred to Business & Commerce.

S.B. 1298 Frank Madla (D - San Antonio) Requires hospitals to adopt policies to improve the workplace for nurses and other employees including more use of ergonomics and plans for workplace violence. Referred to Health & Human Services.

S.B. 1333 Gonzalo Barrientos (D - Austin) Transfers the Texas Commission on Human Rights to the Attorney General. Referred to Government Organization.

S.B. 1478 Royce West (D - Dallas) Amends the whistleblower statute applicable to public entities by permitting a report to be made not only to an appropriate law enforcement authority but also an employee within the employing governmental agency who has the authority to act on the complaint. Substitutes an amount of ten times the annual salary (not including overtime) of the employee for the existing damage caps which are tied to the size of the governmental entity. Referred to Jurisprudence.

S.B. 1648 Kyle Janek (R - Houston) Amends TCHRA to start time for filing suit run from receipt of right to sue notice from either the EEOC or the TCHR. Referred to Jurisprudence.

S.B. 1740 Rodney Ellis (D - Houston) Requires a jury to have the same racial and ethnic composition as the county in which it is selected. Referred to Jurisprudence.

S.B. 1806 Chris Harris (R - Arlington) Provides penalties for an employer failing to comply with a national medical support order. Referred to Jurisprudence.

Ever Wondered What An Adequate Background Check Was?

Fairly comprehensive if you go by a proposed rule from the EPA, which would require certain background checks for employees of a contractor who are going to be employed on a federal site. Check out 1511.011-81(c) in FR Doc 03-1361.

Update On Million Dollar Verdict in the Making

A couple of days ago I mentioned the trial of a bank employee suing because her home phone call had been monitored, she had been reprimanded and ultimately forced to leave her job. Since the report was based on opening statements, I suggested it had all the agreements of a potentially bad case depending on the credibility of the witnesses. Here is that note. Now the jury has spoken, Jury: Couple OK to listen to phone call and what could have been a disaster for the employer, is instead a triumph. Bad (alleged) facts aren't always believed. It's the uncertainty of knowing when they will and when they won't, that makes the decision to take a case to trial so challenging.

Blogs At Work

Noted first at InstaPundit because he is quoted, is an interesting article on how blogs are being treated by employers. Given the topic of this blog, hard to pass up the reference. Anne Freedman's story relates tales of several employees, who are now 'ex-employees' because of their blogging endeavors. As pointed out by one or more of the commentators, almost certainly not illegal for a non-governmental employer. (Governmental employers have constitutional issues to consider.) However, something all employment lawyers who represent management learn, or should learn, at some point in their career, is that just because something is legal, doesn't necessarily mean it is the wise thing to do.

Case to Be Stayed, Not Dismissed Following Motion to Compel Arbitration

The First Court of Appeals is forced to wade into the murky waters of jurisdiction following the granting of a motion to compel arbitration by the district court. For the most part, it concludes it lacks jurisdiction to hear the matter, but does find sufficient jurisdiction to reverse the portion of the trial court's order dismissing the case. Brooks v. Pep Boys Automotive Centers(Tx. Ct. App. - Houston [1st Dist.] 3/13/03). The correct ruling according to the Court is to stay the matter pending the arbitration.

Another Sarbanes Oxley Headache - April 26 Deadline For Employee Hotline

CFO.com has the story of the benefits of employee reports of wrongdoing, but also the concerns about meeting the April 26 deadline for compliance with Sarbanes Oxley's requirement that publicly traded companies must establish mechanisms for anonymous reporting by employees. Part of the problem is the lack of regulations, which although promised obviously are going to be bumping up against the deadline. As a result, many companies are outsourcing the problem and the article has a link to check on the costs of doing so.

Million Dollar Verdict In the Making?

Usually the report doesn't come until the end of a trial, but Andrew Wolfe, of New Hampshire's The Telegraph has a good story on the arguments being made by both sides that stems from an incident in 1992. Intercepted phone calls, retaliation, cover up are all thrown in the mix. A lot will depend on the witnesses credibility no doubt, but this is one of those cases where if the jury believes the plaintiff's version of events, there could well be a large verdict. Stay tuned.

'Redneck Country' Not An Excuse

And that's what the EEOC is claiming was Frontier Materials reason for not giving a black a job in sales according to a story in the Houston Chronicle. The EEOC says it has the details of a conversation from a former employee. Not the truth, according to the company. More than one company has learned that it is not just family law where "exes" can cause expensive problems.

Million Dollar Minnesota, But Not So in Toledo

Today's million dollar verdict, comes from Minneapolis where Ann McGregor convinced a jury that Mallinckrodt Inc., a Tyco subsidiary, tried to create an all male team in one of its divisions at her expense. Although offered a job, she argued it was a sham. She turned it down and turned instead to court. The Star Tribune has the story. The jury award was apparently fueled in part by the company's admission that she was a good employee. That is a tough choice that faces employers in cases where the employee rejects a position and leaves the company. Ultimately, it is the jury's perception of the offered job, which will carry the day, not management's. And it hurts (or helps) depending on which side you are on, to be in an unfavorable venue. According to McGregor's counsel, this is one of seven verdicts for employees against their employer in Minnesota that have topped the million dollar mark.


Although they are much less prominently reported, occasionally a defense verdict makes the headlines. And the Toledo Blade has this one. Often, as in the case of besieged former Sheriff H. Weldin Neff of Seneca County, Ohio, they involve public officials. In this case though the jury quickly rejected the three million dollar harassment claim of Alice Dohner, a former employee who claimed she was forced from her job when the Sheriff had another employee stalk and intimidate her. The most surprised person, with the possible exception of Ms. Dohner, was her lawyer:

"It was the most disappointing decision I’ve had in 46 years as a lawyer," he said. "We had all the evidence that was necessary, including smoking-gun evidence, and we thought the case was a winner, and it was only a question of how much. So that verdict for the defense, in less than two hours, was quite a shock. Now I know how [O.J. Simpson prosecutor] Marcia Clark feels."

Million Dollar Verdicts - Do They Ever End?

Its been a bad year, at least with the legal system, for Rent A Center. Almost a year to the day after settling a class action based on sex discrimination for $47 million, a Kansas City jury tagged on another $1.2 million in a sexual harassment case brought by Jennifer Jones, a former account manager. The Kansas City Star has the story here. Again, we see a relatively low actual damage award, $10,000 with the real hit being the $1.2 in punitive damages.


In Columbus, a jury was even more incensed with the employer, Phillips Medical Systems which discharged 56 year old Thomas Sadowski as part of a reduction in force. According to his lawyer, he was one of three in his department released, all over the age of 54. But what may well have contributed more to the award according to the AP story in the Dayton Daily News was that "he asked to be rehired after he learned the company had openings. He offered evidence that there were almost 20 engineering jobs available and that, despite a company policy of transferring laid off workers into openings, it refused to consider him when he applied for a six of them." According to the jury, that refusal was worth $1.8 in compensatory damages, $6 million in punitive damages plus attorneys fees.

Intersection of Rule 68 and Title VII on Costs and Attorneys Fees

Law.com has the story of the 3rd Circuit's determination of the effect of a plaintiff turning down a Rule 68 offer, and then winning less at trial. Tai Van Le v. University of Pennsylvania (3rd Cir. This follows their earlier story on the district court's decision. The facts that led to the ruling were that the defendant made an offer of $50,000 and the jury awarded $35,000. Claiming that it should be entitled to attorneys fees for amounts expended after the Rule 68 offer, the defendant lost. The money quote from the court:

We hold that a defendant in a Title VII civil rights suit can never recover its attorneys' fees under Rule 68, because the triggering event of that rule alters the potential costs that are 'properly awardable' to a defendant under [Section] 1988.

The triggering event of Rule 68, an award for the plaintiff, means that defendant's can never meet the standard of showing the cause of action was frivolous. Among the cases cited in support of its is one from the Fifth Circuit. EEOC. v. Bailey Ford, Inc., 26 F.3d 570, 571 (5th Cir. 1994). And to make matters worse, the defendant was still required to pay $34,000 for the plaintiff's attorney fees incurred before the offer.

Weekly Update of Action in the 78th Texas Legislature

A weekly update on employment related bills of general interest. As the session momentum begins to build there was an outpouring of proposed legislation, with over 700 bills being submitted this past week. Relatively few of them involved general employment practices. There are some that propose simple, but very helpful amendments, which may stand more of a chance for serious consideration than some of the more complex proposals. Actions taken this week are in bold.


House of Representatives

H.B. 50 Sylvester Turner (D – Houston) Mandatory leave for employees to attend school conferences, and penalties against retaliation for exercising that right. Referred to Economic Development.

H.B. 105 Norma Chavez (D - El Paso) Provides for unemployment benefits, without charge to an employer's account, if an employee is forced to leave employment because of domestic violence. Referred to Economic Development.

H.B. 126 Lon Burnam (D - Fort Worth) Requires parity for mental illness in disability insurance policies sold in state of Texas. Referred to Insurance.

H.B. 152 Ron Wilson (D – Houston) Limits an employer's ability to obtain so called 'dead peasants insurance,' where an employer obtains a policy on lower paid employees with itself as a beneficiary. Referred to Insurance. Scheduled for public hearing on March 10, 2003.

H.J.R. 18 Suzanna Hupp (R – Lampasas) A constitutional amendment to grant a broad right of privacy. In California, a similar constitutional amendment was used as a basis for finding the constitutional right of privacy extended to non-government employers. Referred to State Affairs. Testimony taken on March 3, 2003. Still pending in committee.

H.B. 181 Jessica Farrar (D – Houston) Allows an individual who receives deferred adjudication to legally deny the arrest and prosecution, except for a subsequent criminal prosecution. This would impact information employers are able to obtain when hiring. The bill passed last legislative session, but was vetoed by Governor Perry. Correction of referral, now referred to Law Enforcement.

H.B. 281 Paul Moreno (D – El Paso) This is not technically an employment bill, but is likely to be one of the most talked about and contested non-financial bills of this session. It would make it a misdemeanor (punishable by a $100 fine) to talk on a mobile phone when driving, unless the car is stopped or the phone is operated without the use of either hand. Referred to State Affairs. Testimony taken on March 3, 2003, still pending in committee.

H.B. 328 Warren Chisum (R – Pampa) An attempt to allow employers the opportunity to obtain information from applicants about prior workers compensation claims and injuries. The legislation modifies the Texas Commission on Human Rights Act and the Texas Workers Compensation Act, but unfortunately can not shield employers from the Americans with Disabilities Act which prohibits such inquiries. Referred to Business & Industry. Testimony taken on March 4, 2003 still pending in committee.

H.B. 355 and H.B. 356 Harold Dutton (D – Houston) These are two education leave bills, similar to some of the amendments that have been suggested for the federal Family Medical Leave Act. One would require employers to give time off to employees to meet with teachers, counselors or principals; the other to attend certain school activities. The bills also create new causes of actions against employers for refusing to provide the time off. Referred to Economic Development.

H.B. 359 and H.B. 371 Harold Dutton (D – Houston) These two bills attempt to limit the use of mandatory arbitration. The first would prohibit arbitration of Texas Commission on Human Rights Act or Title VII claims, the second would prohibit mandatory arbitration until an employee had worked for an employer for at least 90 days. Even if these bills were to pass, if the agreement were covered by the Federal Arbitration Act, these restrictions would be pre-empted. Most, but not necessarily all, employment relationships will be covered by the FAA. Referred to Economic Development.

H.B. 379 Harold Dutton (D – Houston) Requires employers to allow employees to review their personnel files. Similar legislation has been offered for several sessions. It would make failure to comply by the employer an unfair employment practice, which is treated as a violation of the Texas Commission on Human Rights Act. Referred to State Affairs.

H.B. 570 Fred Brown (R –Bryan) For non-subscribers to workers compensation, the bill would cap liability at $250,000 for work place injuries to employees. In order to qualify for the cap, the employer must have insurance meeting certain limits. Referred to Business & Industry.

H.B. 574 Jessica Farrar (D – Houston) Amends the Texas Commission on Human Rights Act to prohibit discrimination against individuals on the basis of their sexual orientation or gender identity. It would also protect anyone from being treated differently because of the sexual identity of individuals with whom the employee associates. Referred to Business & Industry.

H.B. 624 Jose Menendez (D - San Antonio). Basically a refined version of Representative Moreno's H.B. 281 which prohibits use of mobile phones while driving. This version has more definitions, some exceptions for emergency calls, and a range of fines that increases if the violation occurs in a school zone. Referred to State Affairs. Testimony taken on March 3, 2003, still pending in committee.

H.B. 643 Arlene Wohlgemuth (R - Burleson) A technical amendment to the punitive damages cap. Currently, the cap is not applicable where the defendant engages in certain criminal activity. The amendment would require a conviction before the cap would not be applicable. Under the current law, plaintiffs are able to argue that certain conduct should be outside the cap because it meets the literal language of the current statute, even though there has been no criminal prosecution. Referred to Civil Practices.

H.B. 705 Burt Solomons (R - Carrollton) Provides a defense against a claim of negligent hiring for employers whose employees enter another's home for purposes of repairs or delivery of goods. The defense would only be available if the employer obtained a criminal record from the Department of Public Safety. The bill gives the employer the right to have that access. Referred to Civil Practices.

H.B. 772 Dawnna Dukes (D - Austin) Similar to H.B.105, would allow an employee to quit a job if advised to by a law enforcement officer, a licensed medical practitioner or a licensed counselor because of domestic violence or stalking and still receive unemployment benefits. The employer's account would not be charged. Referred to Economic Development.

H.B. 804 Charlie Geren (R - Fort Worth) Amends Texas minimum wage law to pre-empt any city ordinance setting a minimum wage. It does not apply to government contracts or tax-abatement agreements. Referred to Economic Development. Set for public hearing on March 12, 2003. In light of recent adoption of a living wage ordinance by Santa Fe, New Mexico, this bill may now get more attention.

H.B. 810 Eddie Rodriguez (D - Austin) Prohibits discrimination by state agencies on the basis of sexual orientation or gender identity. Referred to State Affairs.

H.B. 812 Roberto Gutierrez (D - McAllen) Provides that 75% of any award of punitive damage award will go to the Permanent University Fund. The plaintiff would receive 15% and plaintiff's attorney 10%, notwithstanding any other contractual agreement. Referred to Civil Practices.

H.B. 826 Yvonne Davis (D -145,408 Dallas) Requires employers to turn over any abandoned wage payments to the State Comptroller. Referred to Economic Development.

H.B. 978 Dawnna Dukes (D - Austin) Restrictions on certain business entities being the designated beneficiary of life insurance policies. Referred to Insurance.

H.B. 995 Ken Mercer (R – San Antonio). Expands the public whistle blower statute to also include protection from retaliation for reporting a waste of funds to an appropriate governmental agency. Referred to Government Reform.

H.B. 1018 Mike Villarreal (D – San Antonio) Would provide a preference by state and local governments for vendors who were certified as family friendly by the Texas Workforce Commission for providing employee dependent care benefits. Set for public hearing on March 10, 2003.

H.B. 1045 Joe Deshotel (D – Port Arthur) Creates an alternative base period for computation of unemployment compensation benefits to remove a period of extended medical disability. Referred to Economic Development. Set for public hearing on March 12, 2003.

H.B. 1136 Mike Villarreal (D – San Antonio) Prohibits discrimination in employment, housing or public accommodations because of sexual orientation. Referred to State Affairs.

H.B. 1142 Glenn Lewis (D – Fort Worth) Requires health insurance plans to provide for an annual physical with certain basic lab tests. Referred to Insurance.

H.B. 1244 Senfronia Thompson (D - Houston) A repackaged version of comparable worth. Prohibits discrimination in compensation by paying less to a person in a protected class for a person in an equivalent jobs under similar conditions. The amount of litigation and control of the workplace that this would create is almost unimaginable. It was a bad idea when first introduced and has gotten no better over time. Referred to Economic Development.

H.B. 1245 Terri Hodge (D - Dallas) Amends the unemployment statute to allow workers who are locked out by their employer, or who are idled because of a work stoppage at another location to receive unemployment compensation benefits. Referred to Economic Development.

H.B. 1282 Brian McCall (R - Plano) This is not an employment bill, but an anti-spam one, so certainly one worthy of watching from at least my mailbox's perspective. Set for public hearing on March 12, 2003.

H.B.1359 Aaron Pena (D - Edinburgh) Would make it more difficult to offer evidence of past sexual conduct in civil related cases by adopting the standards and procedures of Rule 412 of the Federal Rules of Evidence. This is the first employment related bill offered by Representative Pena, who in his day job, is the leading plaintiff's employment lawyer in the Valley. Referred to Civil Practices.

H.B. 1360 Aaron Pena (D - Edinburgh) Amends existing state law with respect to penalties for discrimination against national guard personnel, by removing the current cap on damages which was limited to six months pay, adding punitive damages and utilizing the caps applicable to TCHR claims based on number of employees, with a maximum of $300,000 for compensatory and punitive damages by employers with more than 500 employees. An interesting choice, since it will be hard to argue against increasing penalties against employers who discriminate against those who might be called to serve in the Iraq conflict. Referred to Defense Affairs and State-Federal Relations.

H.B. 1496 Burt Solomons (R - Carrollton) Establishes a study to review and propose legislation to strengthen the anti-abuse provisions of the unemployment compensation laws, including increasing collections of overpayments. Referred to Economic Development.

H.B. 1684 Beverly Woolley (R – Houston). Amends the TCHRA so that the issuance of a right to sue letter by the EEOC would also trigger the 60 day deadline for filing a lawsuit under the TCHRA. This would be extremely helpful in making sure that lawsuits are timely filed and eliminate a major flaw in the current situation.

H. B. 2001 Harold Dutton (D - Houston) Adds a federal medical support notice to the requirement that employer’s must follow in withholding from their employee’s.

Senate

S.B. 33 Judy Zaffirini (D – Laredo) Establishes a right to leave to attend certain school functions for employees. Referred to Business & Commerce.

S.B. 61 Judy Zaffirini (D – Laredo) Modifies the existing law on criminal background checks for nursing home employees and applicants. Referred to Health and Human Services.

S.B.137 Rodney Ellis – (D- Houston) Prevents employers from obtaining 'dead peasant's insurance.' Referred to State Affairs.

S.B. 328 Royce West (D - Dallas) Requires an arbitrator and/or arbitration services provider to file a public disclosure within 30 days of the entry of the award by the arbitrator. Failure to do so could result in a fine, and multiple failures could result in the arbitrator being barred from court ordered arbitrations and being listed on a public list maintained by the Office of Court Administration. The disclosure would require the names of the parties, the general nature of the claim and the relief sought, the award by the arbitrator and the costs charged by the arbitrator and the arbitration services provider. It is designed to be a supplement to existing arbitration laws, including the Federal Arbitration Act. Referred to Jurisprudence.

S.B. 374 Tommy Williams (R - Woodlands). Limits liability of employer utilizing a staff leasing company to those items for which it has contracted to pay. Referred to Business & Commerce. Committee Substitute reported out of committee favorably on March 5, 2003 and recommended for Local and Uncontested Calendar.

S.B. 390 Rodney Ellis (D - Houston) The first Senate bill to prohibit use of a cell phone while driving. Referred to Criminal Justice.

S.B. 819 Troy Fraser (R - Horseshoe Bay) Amend workers compensation statute so insurance carrier can challenge compensability even if it misses the seven day deadline for beginning benefits or contesting the injury. Although able to challenge compensability, missing the deadline would constitute an administrative violation.

S.B. 820 Troy Fraser (R - Horseshoe Bay) Amends workers compensation statute to make first impairment rating final if an objection is not filed within 90 days.

S.B. 956 Robert Duncan (R - Lubbock) Directs the state auditor to study ways of improving collection of overpayments of unemployment compensation and for the Texas Workforce Commission to implement those methods.

S.B. 981 Kim Brimer (R - Fort Worth) Amends the unemployment compensation statute to remove disqualification because of a labor dispute at another facility.

S.B. 997 Royce West (D - Dallas) Requires an arbitrator to provide certain information about an arbitration, including a copy of the award, to the Office of Court Administration within 31 days of the award. Would allow parties to request that the record be sealed under the same standard applicable to court documents.