Bill Text: TX HB1031 | 2013-2014 | 83rd Legislature | Comm Sub
Bill Title: Relating to the confidentiality of certain communications involving an ombudsman program established by an employer as an alternative dispute resolution service.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2013-04-29 - Considered in Calendars [HB1031 Detail]
Download: Texas-2013-HB1031-Comm_Sub.html
83R13855 MAW-F | |||
By: Lewis | H.B. No. 1031 | ||
Substitute the following for H.B. No. 1031: | |||
By: Farney | C.S.H.B. No. 1031 |
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relating to the confidentiality of certain communications | ||
involving an ombudsman program established by an employer as an | ||
alternative dispute resolution service. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Title 7, Civil Practice and Remedies Code, is | ||
amended by adding Chapter 160 to read as follows: | ||
CHAPTER 160. OMBUDSMAN PROGRAM ESTABLISHED BY EMPLOYER | ||
Sec. 160.001. DEFINITIONS. In this chapter: | ||
(1) "Employee" means a person who is employed by an | ||
employer. | ||
(2) "Employer" means a person who employs one or more | ||
employees. | ||
(3) "Investigation" means an inquiry conducted for an | ||
employer to make an official factual determination or an official | ||
disposition or decision. | ||
Sec. 160.002. ESTABLISHMENT OF OMBUDSMAN PROGRAM. (a) An | ||
employer may establish an ombudsman program to provide an | ||
alternative dispute resolution service. The program may provide | ||
information, facilitation, mediation, and conciliation guidance | ||
and assistance to: | ||
(1) help employees and others resolve workplace and | ||
organizational disputes; and | ||
(2) permit employees and other persons to have | ||
confidential communications on issues of concern or conflict, | ||
including allegations of misconduct. | ||
(b) An ombudsman program established under this chapter by | ||
an employer: | ||
(1) must be neutral and functionally independent; | ||
(2) may not have the authority to make managerial | ||
decisions with regard to any issue brought to the program; | ||
(3) may not be responsible for any essential business | ||
function of the employer, including operations, compliance, human | ||
resources, or equal employment opportunity; | ||
(4) may not be staffed by employees who hold positions | ||
with responsibility for any essential business function of the | ||
employer, including operations, compliance, human resources, or | ||
equal employment opportunity; | ||
(5) may be staffed by employees of the employer but not | ||
by an officer or director of the employer; and | ||
(6) must have direct access to the employer's senior | ||
management. | ||
(c) An ombudsman program may not have authority to receive | ||
notice of claims against the employer. | ||
(d) An ombudsman program may not have authority to collect, | ||
assemble, or maintain permanent information or records relating to | ||
confidential communications for the employer. | ||
(e) An ombudsman program may not have authority to conduct a | ||
formal investigation for the employer. | ||
(f) An ombudsman program and the employer establishing the | ||
program shall adequately publicize the existence, purpose, and | ||
limitations of the program and inform employees and others that | ||
communications with the program are confidential. | ||
(g) An employer that establishes an ombudsman program under | ||
this chapter shall ensure that the program has procedures and | ||
facilities adequate to permit confidential access to the program's | ||
office and to preserve confidential communications. The program | ||
shall adhere to generally accepted standards for organizational | ||
ombudsman programs to preserve confidentiality of communications. | ||
Sec. 160.003. CONFIDENTIALITY PROVISIONS. (a) This | ||
section applies only to an ombudsman program that meets the | ||
requirements of Section 160.002. | ||
(b) Except as provided by Subsections (c) and (d), the | ||
following oral and written communications are confidential, | ||
privileged, and not subject to discovery and may not be used as | ||
evidence in any judicial or administrative proceeding: | ||
(1) communications between a staff member of the | ||
program and an employee or other person for the purpose of assisting | ||
with the informal and expeditious resolution of a concern or | ||
complaint; and | ||
(2) communications between staff members of the | ||
program for the purpose of assisting with the informal and | ||
expeditious resolution of a concern or complaint. | ||
(c) The following oral or written communications are not | ||
privileged or protected from discovery in any judicial or | ||
administrative proceeding: | ||
(1) communications between a person making a | ||
complaint, or any staff member of an ombudsman program, and an | ||
officer, director, agent, or employee of the employer for the | ||
purpose of notifying the officer, director, agent, or employee of | ||
the existence of an unsafe practice or violation of a state or | ||
federal law; and | ||
(2) communications concerning: | ||
(A) conduct, including a pattern of conduct, that | ||
is reasonably likely to result in damages to any person; or | ||
(B) a threat of serious harm or injury to any | ||
person. | ||
(d) A staff member of an ombudsman program shall disclose | ||
confidential material: | ||
(1) that concerns conduct, including a pattern of | ||
conduct, that is reasonably likely to result in damages to any | ||
person; or | ||
(2) the disclosure of which is necessary to prevent | ||
serious harm or injury to any person. | ||
Sec. 160.004. APPLICATION OF OTHER LAW. The | ||
confidentiality provisions of this chapter are in addition to any | ||
privilege or protection under statutory or common law, including | ||
Section 154.073, the attorney-client privilege, and the attorney | ||
work product privilege. | ||
Sec. 160.005. ADMISSIBILITY OF OTHER INFORMATION. This | ||
chapter does not prevent: | ||
(1) the discovery or admissibility of information that | ||
is otherwise discoverable; | ||
(2) the disclosure of information for research or | ||
educational purposes in connection with a training or educational | ||
component of an ombudsman program if the identity of the parties and | ||
the specific issues from the confidential communication are not | ||
identifiable; or | ||
(3) the preparation and disclosure of statistical | ||
summary reports organized by category of the issues presented if | ||
the summary is based on a sufficiently large number of issues so | ||
that the identity of the parties and the specific issues from the | ||
confidential communication are not identifiable. | ||
Sec. 160.006. APPLICABILITY OF CHAPTER. (a) This chapter | ||
does not apply to an ombudsman program or other alternative dispute | ||
resolution service established by an employer unless the program or | ||
service provides expressly in writing that this chapter applies to | ||
the program or service. | ||
(b) This chapter does not prevent an employer from | ||
establishing an ombudsman program or other alternative dispute | ||
resolution service that is not subject to this chapter. | ||
SECTION 2. The change in law made by this Act with regard to | ||
the confidentiality of communications applies only to a suit or | ||
administrative proceeding that commences on or after the effective | ||
date of this Act. A suit or administrative proceeding that | ||
commences before that date is governed by the law in effect on the | ||
date the suit or proceeding commenced, and the former law is | ||
continued in effect for that purpose. | ||
SECTION 3. This Act takes effect September 1, 2013. |