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
A BILL TO BE ENTITLED
AN ACT
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.