UPDATE ON RECENT AND PENDING
HR LEGISLATION AND REGULATION
Texas Higher Education
Human Resources Association
January 25, 2011
Presented by
Lon R. Williams, Jr.
Bracewell & Giuliani LLP
1445 Ross Avenue, Suite 3800
Dallas, Texas 75202
214.758.1086
817.886.6750
Pending Federal HR
Related Legislation
New Congress – Stay Tuned
The following legislation was pending in the prior Congress and may or
may not be introduced in the current Congress:
• Employee Free Choice Act
• Employment Non-Discrimination Act ("ENDA") (H.R. 3017, S. 1584)
• OSHA Legislation Protecting America's Workers Act of 2009 (H.R.
2067, S. 1580) Also, Mine Safety Act (H.R. 5663, S. 3671)
• Comprehensive Immigration Reform for America's Security and
Prosperity Act (H.R. 4321)
• Family-Friendly Workplace Act (H.R. 933)
• Family Fairness Act (H.R. 389)
• Emergency Influenza Containment Act (H.R. 3991)
• Fair Pay Act (H.R. 2151, S. 904)
New Congress, continued
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Paid Vacation Act (H.R. 2564)
Working Families Flexibility Act (H.R. 1274)
Alert Laid Off Employees in Reasonable Time Act ("ALERT") (H.R. 2077)
COBRA Premium Assistance Extension (S.3549)
Taxpayer Responsibility, Accountability and Consistency Act of 2009 (S.
2882, H.R. 3408)
Employee Misclassification Prevention Act (S. 3254, H.R. 5107)
Protecting Older Workers Against Discrimination Act (H.R. 3721, S. 1756)
Direct Care Workforce Empowerment Act (HR 5902; S. 3696)
The Arbitration Fairness Act (H.R. 1020, S. 931)
Balancing Act of 2009 (H.R. 3047)
DREAM Act Defeated in Senate
• On December 18th a 55-41 Senate vote fell five votes short of the
60 needed to begin debate on the proposed Development, Relief,
and Education of Alien Minors Act (S. 3992), which would provide a
path to citizenship for many younger immigrants
Balancing Act of 2009 (H.R. 3047)
• Would consolidate proposed changes to the FMLA into
one proposal, incorporating provisions from the Domestic
Violence Leave Act (H.R. 2515), Family and Medical
Leave Enhancement Act (H.R. 824), Family and Medical
Leave Insurance Act (H.R. 1723) and Healthy Families
Act (H.R. 2460)
Balancing Act of 2000, cont.
• Would provide 12 weeks of paid FMLA leave
• Would create a Family and Medical Leave Insurance Fund funded
by new tax on employers and employees
• Would require up to 7 days of paid sick leave per year
Employee Free Choice Act ("EFCA")
(H.R. 1409, S. 560)
• Would amend the National Labor Relations Act to make it easier for
employees to gain union representation by a majority signing union
authorization cards in lieu of a majority vote in an election
– 50% +1 employees in Bargaining Unit sign cards then union
would be certified to represent employees
Paycheck Fairness Act
• In December the Paycheck Fairness Act was defeated by 2 votes in
the Senate.
Paycheck Fairness Act
(H.R. 12, S. 182)
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Originally part of Lilly Ledbetter Fair Pay Act, passed in 2009
Would increase penalties under Equal Pay Act ("EPA")
Would allow compensatory and punitive damages under EPA
Would limit affirmative defense available to employers:
• Currently, EPA provides that employers may justify pay
differential between female and male employees showing
disparity is based on “any factor other than sex
• Bill would require that the “other factor” must be a “bona fide
factor,” such as education, training or experience
• Employer would have to demonstrate that the factor is not
based on a sex-based differential, is job-related and is
consistent with business necessity
Paycheck Fairness Act, cont.
• Would expand prohibition on retaliation against workers who
discuss or disclose compensation of co-workers when employees
respond to complaint or charge regarding pay discrimination
• Would make it easier for plaintiffs to organize a class action
– Bill uses “opt out” method and eliminates "opt-in" currently under
EPA
Arbitration Fairness Act
HR 1020 – S.931
• Would have prohibited mandatory arbitration in employment
relationships
Equal Employment for All Act (H.R. 32)
• Reintroduced in House to amend the Fair Credit Reporting Act
• Would prohibit use of consumer credit checks against prospective
and current employees for purpose of making adverse employment
decisions (including hiring, promotions, transfers and terminations)
• Would prohibit use of consumer credit reports, even if worker
consented
• Would allow use only if job at issue required among other reasons,
for national security or Federal Deposit Insurance Corporation
clearance, was for state or local government agency or a
supervisory, managerial, professional, or executive position at
financial institution
Protecting America's Workers Act (H.R.
190)
• OSHA overhaul legislation reintroduced on January 5th
• Higher civil and criminal penalties for violation of OSHA; enhanced
whistleblower protections; covers public employees; and broader
rights for family members of injured workers to participate in
settlement negotiations
Recently Passed Federal
HR Legislation
Health Care Reform:
Patient Protection & Affordable Care Act (as
amended by Reconciliation Act)
• On March 23, 2010, President Obama signed the Patient Protection
and Affordable Care Act into law ("PPACA")
• Shortly thereafter, on March 30, 2010, a modified version of the
House's Reconciliation Bill was signed into law, making changes to
the broader heath care reform law enacted on March 23
Tax Relief, Unemployment Insurance
Reauthorization and Job Creation Act of 2010
• The Tax Relief, Unemployment Insurance Reauthorization and Job
Creation Act of 2010, enacted December 17, 2010, included many
extensions to tax credits and exclusions that affect employers and
employees.
• Included a two-year extension of a tax break for employer-provided
tuition assistance
• Temporary Extension of Unemployment Insurance and Related
Matters - Postponed the termination of the program until June 9,
2012.
Telework Enhancement Act
• More than 1 million federal employees could be eligible to
telecommute after President Barack Obama signed the Telework
Enhancement Act (H.R. 1722) into law on December 9, 2010
Dodd-Frank Wall Street Reform and Consumer
Protection Act ("Dodd-Frank")
• "Say-on-Pay"
• President signed into law July 21, 2010
• Gives shareholders right to vote on executive compensation
including golden parachutes in publicly traded companies and
financial institutions.
• Includes pay of CEO, CFO and the three other highest paid officers
• Shareholders may vote at least every 3 years
• Completely advisory
• Takes effect for shareholder meetings in 2011
Cont'd – Dodd-Frank
• Dodd-Frank also requires that every federal financial services
agency establish an Office of Minority and Women Inclusion by
January 20, 2011
• Agencies (i.e., FDIC and NCUA) required to develop standards for
"increased participation of minority-owned and women-owned
businesses in the programs and contracts of the agency" and
standards for "assessing the diversity policies and practices of
entities regulated by the agency"
• Will force federal contractors to deal with 2 sets of regulations and
guidelines – those enforced by OFCCP and those promulgated by
new diversity and inclusion offices
Cont'd - Dodd-Frank
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Expands whistleblower protections to wide range of financial services
industry employees and allows employees proceeding under SarbanesOxley Act ("SOX") to sue in federal court, bypassing administrative process
Protects such employees from retaliation for disclosing information about
fraud or unlawful conduct related to consumer financial products, and
covers employees that extend credit, service loans, provide real estate
settlement services, and provide financial advice – including credit
counseling to consumers
Claims are exempt from mandatory arbitration agreements that protected
activity was a contributing factor in an adverse employment action
Clarifies that SOX whistleblower protections apply to employees of
subsidiaries or publicly traded companies
Statute of limitations for actions alleging fraud against the government is 3
years
Mental Health Parity Act
• Group health plans that provide medical and surgical
benefits and mental health or substance use
disorder benefits must apply same financial
requirements and treatment limitations to both
coverage areas
• Law does not apply to employers with < 50
employees or to group health plans that experience
a 1% or more increase in costs because of mental
health parity provisions
• Law does not force employers to provide mental
health coverage
Franken Amendment
• Generally, the Franken Amendment prohibits covered contractors
and subcontractors from requiring employees to arbitrate certain
employment claims
– "Covered Contractor" = Any Department of Defense contractor
with a contract over $1 Million
• Specifically, Franken Amendment prohibits a covered contractor
from requiring its employees or independent contractors to arbitrate:
– (i) claims arising under Title VII; or
– (ii) any tort related to or arising out of sexual assault or
harassment
• Covered contractors also prohibited from enforcing any provision of
an existing agreement which requires such claims to be arbitrated,
and are required to get certifications from any entities with
subcontracts in excess of $1 Million on a covered contract that the
subcontractor is in compliance with Franken Amendment
Recent Federal
HR Regulations
Employee Rights Poster Required by
Federal Contractors
• Mandated as of June 20 a poster advising employee's right to join
or not join a union and describing union and employer misconduct
– Federal contractors and subcontractors are required to post this
employee rights notice in their workplaces
• Under DOL's final rule, employees may file complaints with the
Labor Department about contractors that do not post the notice, and
contractors who violate the regulation could have their federal
contracts suspended or canceled
Mental Health Parity Act
• Mental Health Parity Regulations Effective Dates:
– Regulations effective April 5, 2010, for plan years
beginning on or after July 1, 2010
– Calendar-year plans must comply with the new
regulations beginning with the 2011 plan year
Mental Health Parity Act
FAQ's on Website
• Guidance posted July 1st on Department of Labor's Employee
Benefits Security Administration website http://dol.gov/ebsa/faqs
GINA Title II Regulations
• EEOC issued final regulations on November 9, to implement Title II
of the Genetic Information Nondiscrimination Act (GINA)
• These final regulations became effective on January 10, 2011!
• Among other provisions, the regulations include model safe harbor
language that employers are strongly encouraged to use when
lawfully requesting medical information from an employee,
physician or other third party
• Regulations do not restrict an employer from receiving genetic
information inadvertently after it requests health-related information
if the employer warns employees not to provide genetic information.
Dodd – Frank Say-on-Pay Rules
• On November 18, 2010, comment period ended for employers to
comment on proposed regulations implementing the Dodd-Frank
Act Section 951 say-on-pay requirements
Health Care Reform:
PPACA
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July 14, 2010, HHS issued regulations under the PPACA requiring new
(i.e., "non-grandfathered") health plans to cover listed preventative services
and eliminate cost-sharing requirements for such services
Must cover such services without charge to patients
Applies to those who enroll in non-grandfathered health plans after
September 23, 2010
Grandfathered plans are exempt from the requirement
Healthcare services covered are:
– Preventive services
– Vaccines
– Pediatric care
– Prevention for women
Electronic I-9 Forms
• On July 22 final rule published by Homeland Security which
amended I-9 regulations
• Took effect August 21st
• Regulations clarify:
– I-9 Form must be completed within 3 business days of the date
hired
– The use of paper, electronic systems or a combination of paper
and electronic systems is acceptable
– Employers may but are not required to copy verification
documents
ADA Amendments Act (ADAAA)
• On September 23, 2009, the EEOC published its
proposed regulations implementing and interpreting the
ADAAA:
– Public comment period expired on November 23,
2009
– Proposed regulations would require employers to
revise policies, train or re-train HR personnel and
supervisors in dealing with disability issue, and focus
on reasonable accommodation issues and the
interactive process between the employer and the
disabled employee
EEOC Approved Regulations for ADA
Amendments Act
• EEOC approved a final set of regulations for ADAAA at the end of
December 2010
– Five Commissioners voted privately and unanimously to
approve the long-awaited regulations
• ADAAA final regulations were released to the Office of Management
and Budget (OMB) and other federal agencies for review and
comment
• Once OMB approves the regulations, they will be published in the
Federal Register
• Review by OMB could take several months
Breast Feeding Regulations
• The DOL on December 21, 2010, announced that it is seeking
comments on provisions of the Fair Labor Standards Act (FLSA)
that require employers to provide nursing mothers with reasonable
break time and a private space for expressing breast milk while at
work
Nursing Mothers Entitled Reasonable
Breaks - Fact Sheet #73
• Fact sheet issued by DOL - Wage and Hour Division explains
employers' obligations under the PPACA
• Employers must provide reasonable unpaid break time and a
private place for breast-feeding employees, titled "Break Time for
Nursing Mothers under the FLSA"
• Applies only to non-exempt employees
– Federal law does not require employers to compensate nursing
mothers for the breaks while nursing
– Employer with less than 50 employees at all work sites exempt if
undue hardship
Comment Deadline for Proposed NLRA
Rights Poster
• The NLRB has published a Notice of Proposed Rulemaking that
would require many employers to notify employees of their rights
under the National Labor Relations Act (NLRA) by posting a notice
• The proposed rule would apply to private-sector employers subject
to the NLRA, excluding agricultural, railroad and airline employers
• Public can submit comments on the proposal until February 22,
2011
CIS Extends Comment Period on E-Verify
Self-Check proposal
• Homeland Security's Citizenship and Immigration Services
published a notice in the December 14 Federal Register extending
the comment period regarding a new self-check service that would
allow U.S. workers to enter data into the E-Verify system to ensure
that information related to their work eligibility is accurate.
DOD Final Rule Bars Mandatory
Arbitration
• The Defense Department is barring certain defense contractors and
subcontractors from requiring employees or independent
contractors to arbitrate claims under Title VII of the 1964 Civil
Rights Act or torts arising out of sexual assault or harassment,
according to a final rule published in the December 8 Federal
Register
DOT Proposes Commercial Driver Cell
Phone Bans
• Interstate commercial truck and bus drivers would be prohibited
from reaching for, holding, or dialing their cell phones while driving,
and employers that allowed their drivers to use cell phones while
driving would be subject to a penalty of up to $11,000, under a
Federal Motor Carrier Safety Administration proposed rule
published in the December 21 Federal Register
HR Related Administrative Action
DOL FY 2011-2016 Strategic Plan
• Wage and Hour Division and Department of Treasury joint initiative
regarding misclassification of employees as independent
contractors is Strategic Goal No. 1
Health Care Reform:
PPACA
• IRS on December 2 provided final guidance on the small employer
tax credit included in health care reform legislation under tax code
Section 45R
Health Care Reform:
PPACA
• The Obama Administration is continuing to grant businesses
waivers from the Patient Protection and Affordable Care Act's
minimum annual limits
Health Care Reform:
PPACA
• On September 20, 2010, the DOL, Health and Human Services
(HHS) and the Treasury issued new frequently asked questions on
the Patient Protection and Affordable Care Act and grandfathered
health plans, internal appeals and external review, coverage of
children, out-of-network emergency services and highly
compensated employees
DOL Posts Enforcement Data Online:
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The DOL has made an online searchable database available of
enforcement data collected from the W&H Division, OFCCP, EBSA, OSHA,
and MSHA
– Previously, only OSHA and MSHA made their enforcement data
available online
Database will include detailed information (to be updated quarterly)
regarding closed investigations, such as:
– Number of FLSA violations per employer;
– Amount of back wages an employer has "agreed to pay;"
– Number of employees an employer has "agreed to pay;"
– Type of violation; and
– Amount of civil penalties assessed
Database will likely be tracked by plaintiffs' employment lawyers interested
in potential litigation – something employers should keep in mind when
considering to voluntarily resolve a DOL investigation
Bridge to Justice Program
• DOL to refer work to Plaintiffs' Bar
• Effective December 13, 2010, DOL launched its "Bridge to Justice"
alliance with the American Bar Association
• DOL hopes to bring together employees with private counsel to
pursue claims under FLSA or FMLA
• Complaining employees may be provided a toll-free telephone
number to ABA's attorney referral program
• Under Program, individual and counsel entitled to an "expedited
disclosure" outside FOIA
2011 Tax Withholding Tables
Implementation Deadline
• The IRS has released instructions to help employers implement the
2011 cut in payroll taxes, along with new income-tax withholding
tables that employers will use during 2011
• Employees’ Social Security tax withholding rate is reduced from 6.2
percent to 4.2 percent of wages paid.
• Employers must start using the new withholding tables no later than
January 31, 2011
New Emphasis on Enforcement of Federal
Labor Statutes
• The DOL is committed to tougher enforcement of labor laws to
reverse a culture of noncompliance that has developed over the
past 10 years, Labor Solicitor M. Patricia Smith said October 21st.
OFCCP Agenda
• The Obama Administration is attempting to overhaul the Labor
Department's OFCCP.
OFCCP Discontinues I-9 Inspections
• The OFCCP will no longer inspect federal contractors' I-9 forms
during onsite compliance reviews, OFCCP Director Patricia Shiu
stated on November 16
E-Verify Changes Designed to Improve
Accuracy
• A set of initiatives designed to improve the accuracy and efficiency
of E-Verify was announced on March 17, 2010
• Goal of initiatives is to streamline the processes and investigation
for claims of immigration bias and employer misuse of the E-Verify
System
• Included in the initiatives is a new telephone hotline for workers and
job seekers who want information on E-Verify, along with two
training videos that outline E-Verify's processes and policies and
explain the rights of employees and responsibilities of employers
under the program
• The training videos can be seen online at www.dhs.gov/e-verify.
• The new hotline number is (888) 897-7781 and was set to be
activated on April 5, 2010
E-Verify Includes U.S. Passport Photo
Capability
• The E-Verify program now includes U.S. passport photo matching,
which will enhance the integrity of the program by enabling E-Verify
to automatically check the validity and authenticity of all U.S.
passports and passport cards presented for employment verification
checks, Homeland Security announced on November 10th.
EEOC Litigation
EEOC recently filed a nationwide class action complaint against a
for-profit education provider alleging practice of checking the credit
histories of job applicants and employees is racially discriminatory
under Title VII of the 1964 Civil Rights Act
EEOC
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EEOC has increased its staffing to more than 2,500 employees
Attacking case backlog
– Will devote resources to volume of discrimination Charges,
investigating and litigating systemic cases, issuing final regulations
under the ADAAA and ADEA
The Systemic Program
– EEOC recovered record $404 million in monetary relief for private
sector discrimination in FY 2010
– In systemic cases, investigation and litigation of discrimination claims
– Affecting classes of employees or job applicants on 465 pending
systemic investigations
– Employers can expect increased activity from EEOC in 2011 in:
• Disability discrimination
• Hiring Discrimination
Retaliation Charges
• Retaliation Charges rose to 36.3 percent of 2010 charges
• Race discrimination charges filed rose to 35.9 percent of Charges
• All Charge numbers under all of laws EEOC enforces rose in 2010
Immigration
• Obama Administration interested in targeting employers
• Criminal Prosecutions
– ICE has increased administrative fines and paper audits
– In recent audit with no unauthorized worker, ICE fined employer
$1 million for I-9 paperwork violations
– Criminal prosecutions of employers have risen
– ICE now investigates employer without employer's knowledge
for months before notice of I-9 inspection
– ICE's policy to use I-9 audits to lay foundation for criminal
prosecutions
Immigration Handbook for Employers
• Homeland Security released on January 5 "Handbook for
Employers" to help employers understand I-9 process
• Includes new visual aids for completing the Form I-9; expanded
guidance on processing of employees in certain visa category
ICE's IMAGE Program
• Immigration and Customs Enforcement's Mutual Agreement
between Government and Employers (IMAGE) program
implemented to help employers comply with immigration laws
• Voluntary program intended to strengthen employment and help
employers verify that their employees are authorized to work
• Program participants are "IMAGE certified" by ICE
• To become IMAGE certified, employees subject to an I-9 audit and
other checks by ICE
• Requires participating companies to join E-Verify
OSHA's Severe Violator Enforcement
Program
• Announced on April 22 by OSHA and focuses additional
enforcement on "recalcitrant employers who endanger workers by
demonstrating indifference to their responsibilities under the law"
• Employers that meet certain criteria demonstrating their indifference
to OSHA could be subjected to enhanced enforcement, including
"mandatory follow-up inspections, increased company/corporate
awareness of OSHA enforcement, corporate-wide agreements,
where appropriate, enhanced settlement provisions, and federal
court enforcement"
• Program now being implemented
OSHA Enforcement
• Under the Obama Administration, OSHA inspectors have increased
the number of citations for alleged health and safety violations and
are shifting their attention to high-risk sectors and repeat violators
Criminal Prosecutions of OSHA Violations
• Head of OSHA on January 18 stated that state and local
prosecutors may be asked to pursue criminal charges against
violators of worker safety laws
• Also on January 18th President Obama in the Wall Street Journal
singled out worker health and safety as an important policy area for
his administration
Revised Agency Interpretations of FLSA
Provisions
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In March and June of 2010, the Labor Department's Wage and Hour
Division issued Administrator's Interpretations with respect to the FLSA
which deviated from the agency's previously stated positions:
FLSA:
– March Interpretation: DOL concluded that employees who perform the
"typical" duties of a mortgage loan officer do not qualify as exempt
administrative employees under the FLSA
• Reversal of position taken in 2006 DOL opinion letter
– June Interpretation: DOL indicated that even if the time a bargaining
unit employee spends donning and doffing clothes is excludable from
compensatory time, changing clothes can be a principal activity that
starts the continuous workday
• Reversal of position taken in 2007 DOL opinion letter
Revised Agency Interpretations of FMLA
Provision
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In June 2010, the Department of Labor issued a new Interpretation #3
clarifying a preexisting FMLA regulation:
FMLA:
– Clarified the definition of "son or daughter" under Section 101(12) of
FMLA as it applies to an employee standing "in loco parentis" to a child
– Agency concluded that either day-to-day care or financial support may
establish an in loco parentis relationship where the employee intends to
assume the responsibilities of a parent with regard to a child
"Neither the statute nor the regulation restrict the number of parents a child
may have under the FMLA"
"A simple statement asserting that the requisite family relationship exists is
all that is needed"
Texas HR Related Legislation
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Session started January 11, 2011
Already over 900 Bills introduced
Over 48 involving employers
Over 140 involving employees
S.B. No. 314
• Employees would not be disqualified for unemployment benefits if
employee leaves work as result of employee or family member's
sexual assault
H.B. No. 471
• Would require workers' secret ballot election when determining
whether to be represented by union
H.B. No. 335
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A state agency would not be allowed to implement a provision of a federal
health care reform law unless it submits a report.
The report would have to describe an expenditure incurred in implementing
a provision of a federal health care reform if:
– The provision would:
• Require a person to purchase health insurance or similar health
coverage;
• Require an employer to provide health insurance or similar health
coverage to employees;
• Impose a penalty on an employer who does not provide health
insurance or similar health coverage to employees;
• Expand eligibility for the state Medicaid program or state child
health plan program;
• Create a health insurance coverage mandate affecting a person; or
• Create a new health insurance or similar health coverage program
that is administered by Texas or a political subdivision of Texas.
H.B. No. 296
• During any detention or arrest made by a peace officer or law
enforcement agency of this state or of a political subdivision of this
state, the officer or agency shall make a reasonable attempt, if
practicable, to determine the immigration status of the person
detained or arrested
• The investigation of a person's immigration status may not serve as
the grounds for the detention or arrest and may not unlawfully
prolong the period in which the person is detained or is maintained
in custody by the officer or agency
H.B. No. 276
• Relating to the minimum wage an employer shall pay to each
employee not less than the greater of
– $6.15 an hour; or
– the federal minimum wage under Section 6, Fair Labor
Standards Act
H.B. No. 177
• Relating to the requirement of citizenship or lawful presence in the
United States for issuance or renewal of certain occupational
licenses, driver's licenses, and identification certificates
• An applicant for a license must establish employment eligibility if the
applicant is:
– applying for an original license; or
– renewing a license and the applicant has not previously
established employment eligibility
H.B. No. 126
• Relating to required drug testing for applicants and recipients of
unemployment compensation benefits
• Each individual who files a claim for benefits or receives benefits
under this subtitle must submit to drug testing
• An applicant or recipient of benefits who does not successfully pass
a drug test required under this section is disqualified for
unemployment benefits
H.B. No. 68
• Relating to notice concerning the use of criminal history information
in an employer's hiring process
• Not later than the 10th day after the date an employer notifies an
applicant that the employer will not be making an offer of
employment to the applicant based wholly or partly on criminal
history information concerning the applicant, the employer shall
provide the applicant a written explanation containing:
– an identification of the specific arrest, detention, indictment or
charge, or disposition that influenced the decision
S.B. No. 64
• Relating to the right of an employee who is a victim of a crime to
time off from work to attend court proceedings related to that crime
• An employee who is a victim of a crime or the parent or guardian of
a victim of a crime is entitled to time off to attend court proceedings
related to the crime
QUESTIONS ?
Lon R. Williams, Jr.
Bracewell & Giuliani LLP
1445 Ross Avenue, Suite 3800
Dallas, TX 75202
(214) 758-1086; (817) 886-6750
lon.williams@bgllp.com