Texas 2009 - 81st Regular

Texas House Bill HB4377 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	81R5900 ALB-F
2	2	By: Rose H.B. No. 4377
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the confidentiality of certain communications
8	8	involving an ombudsman program established by an employer as an
9	9	alternative dispute resolution service.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Title 7, Civil Practice and Remedies Code, is
12	12	amended by adding Chapter 160 to read as follows:
13	13	CHAPTER 160. OMBUDSMAN PROGRAM ESTABLISHED BY EMPLOYER
14	14	Sec. 160.001. DEFINITIONS. In this chapter:
15	15	(1) "Employee" means a person employed by an employer.
16	16	(2) "Employer" means a person who employs at least one
17	17	employee.
18	18	(3) "Investigation" means an inquiry conducted for an
19	19	employer, the purpose of which is to make an official factual
20	20	determination or an official disposition or decision.
21	21	Sec. 160.002. ESTABLISHMENT OF OMBUDSMAN PROGRAM. (a) An
22	22	employer may establish an ombudsman program to provide an
23	23	alternative dispute resolution service. The program may provide
24	24	information, facilitation, mediation, and conciliation guidance
25	25	and assistance to:
26	26	(1) help employees and others resolve workplace and
27	27	organizational disputes; and
28	28	(2) permit employees and other persons to have
29	29	confidential communications on issues of concern or conflict,
30	30	including allegations of misconduct.
31	31	(b) An ombudsman program established under this chapter by
32	32	an employer:
33	33	(1) must be neutral and functionally independent;
34	34	(2) may not have the authority to make managerial
35	35	decisions with regard to any issue brought to the program;
36	36	(3) may not be responsible for any essential business
37	37	function of the employer, including operations, compliance, human
38	38	resources, or equal employment opportunity;
39	39	(4) may not be staffed by employees who hold other
40	40	positions with responsibility for any essential business function
41	41	of the employer, including operations, compliance, human
42	42	resources, or equal employment opportunity;
43	43	(5) may be staffed by employees of the employer but not
44	44	by an officer or director of the employer; and
45	45	(6) must have direct access to the employer's senior
46	46	management.
47	47	(c) An ombudsman program may not have authority to receive
48	48	notice of claims against the employer.
49	49	(d) An ombudsman program may not have authority to collect,
50	50	assemble, or maintain permanent information or records relating to
51	51	confidential communications for the employer.
52	52	(e) An ombudsman program may not have authority to conduct a
53	53	formal investigation for the employer.
54	54	(f) An ombudsman program and the employer establishing the
55	55	program shall adequately publicize the existence, purpose, and
56	56	limitations of the program and inform employees and others that
57	57	communications with the program are confidential.
58	58	(g) An employer that establishes an ombudsman program under
59	59	this chapter shall ensure that the program has procedures and
60	60	facilities adequate to permit confidential access to the program's
61	61	office and to preserve confidential communications. The program
62	62	shall adhere to generally accepted standards for organizational
63	63	ombudsman programs to preserve confidentiality of communications.
64	64	Sec. 160.003. CONFIDENTIALITY PROVISIONS. (a) This
65	65	section applies only to an ombudsman program that meets the
66	66	requirements of Section 160.002.
67	67	(b) The following oral and written communications are
68	68	confidential, privileged, and not subject to discovery and may not
69	69	be used as evidence in any judicial or administrative proceeding:
70	70	(1) communications between a staff member of the
71	71	program and an employee or other person for the purpose of assisting
72	72	with the informal and expeditious resolution of a concern or
73	73	complaint; and
74	74	(2) communications between staff members of the
75	75	program for the purpose of assisting with the informal and
76	76	expeditious resolution of a concern or complaint.
77	77	(c) Notwithstanding Subsection (b), a staff member of an
78	78	ombudsman program may voluntarily disclose confidential
79	79	information if the staff member determines that disclosure is
80	80	necessary to prevent an imminent threat of serious harm.
81	81	(d) Information discovered or disclosed in violation of
82	82	this chapter is not admissible as evidence in any proceeding or for
83	83	any other purpose.
84	84	Sec. 160.004. APPLICATION OF OTHER LAW. The
85	85	confidentiality provisions of this chapter are in addition to any
86	86	privilege or protection under statutory or common law, including
87	87	Section 154.073, the attorney-client privilege, and the attorney
88	88	work product privilege.
89	89	Sec. 160.005. ADMISSIBILITY OF OTHER INFORMATION. This
90	90	chapter does not prevent:
91	91	(1) the discovery or admissibility of information that
92	92	is otherwise discoverable;
93	93	(2) the disclosure of information for research or
94	94	educational purposes in connection with a training or educational
95	95	program of an ombudsman program if the identity of the parties and
96	96	the specific issues from the confidential communication are not
97	97	identifiable; or
98	98	(3) the preparation and disclosure of statistical
99	99	summary reports organized by category of the issues presented if
100	100	the summary is based on a sufficiently large number of issues so
101	101	that the identity of the parties and the specific issues from the
102	102	confidential communication are not identifiable.
103	103	Sec. 160.006. APPLICATION OF CHAPTER. (a) This chapter
104	104	does not apply to an ombudsman program or other alternative dispute
105	105	resolution service established by an employer unless the program or
106	106	service provides expressly in writing that this chapter applies to
107	107	the program or service.
108	108	(b) This chapter does not prevent an employer from
109	109	establishing an ombudsman program or other alternative dispute
110	110	resolution service that is not subject to this chapter.
111	111	SECTION 2. The change in law made by this Act with regard to
112	112	the confidentiality of communications applies only to a suit or
113	113	administrative proceeding commenced on or after the effective date
114	114	of this Act. A suit or administrative proceeding commenced before
115	115	the effective date of this Act is governed by the law in effect on
116	116	the date the suit or proceeding was commenced, and the former law is
117	117	continued in effect for that purpose.
118	118	SECTION 3. This Act takes effect September 1, 2009.