TCJL SUPPORTS – At its meeting on Monday the House Judiciary & Civil Jurisprudence Committee approved CSHB 1031 by Rep. Tryon Lewis (R-Odessa). The bill now goes to the House Calendars Committee.
The committee substitute retains most of the original bill, which authorizes an employer to establish an ombudsman program for the purpose of resolving employee complaints or concerns in an informal and expeditious manner. Changes were made in the original version, however, to clarify that certain communications between an employee and the ombudsman are not protected from subsequent discovery in an administrative or judicial proceeding. Specifically, two types of communications are not privileged: (1) those between a complainant or the ombudsman’s and an officer, director, agent, or employee of the employer for the purpose of notifying one or more of them of an unsafe practice or violation of state or federal law; and (2) those concerning conduct or pattern of conduct that is reasonably likely to result in damages to any person or that constitutes a threat of serious harm or injury to any person. If the ombudsman possesses such information, the substitute creates a duty to disclose. An employer may still elect whether to establish an ombudsman program that is subject to the bill.
The Senate companion, SB 399 by Rep. Kelly Hancock (R-North Richland Hills), has been heard in Senate Business & Commerce and is pending.
Senator Kelly Hanock (R-North Richland Hills) and Rep. Tryon Lewis (R-Odessa) have introduced legislation to protect from discovery certain communications between an employee and a staff member of an employer’s ombudsman program. SB 399 and HB 1031 authorize an employer to establish an ombudsman program for the purpose of resolving complaints or concerns in an informal and expeditious manner. To qualify for the privilege of confidentiality under the bill, the program must be neutral, operate independently of the employer’s essential business, and maintain direct access to the employer’s senior management. An ombudsman program established under this provision may not conduct a formal investigation of the employer or receive notices of claims against the employer.
The privilege covers communications between an employee and a staff member, or one between staff members, made in connection with the informal and expeditious resolution of a concern or complaint. The privilege does not apply to information that is otherwise discoverable, the disclosure of information for research or educational purposes in connection with a training or educational component of the program (as long as the identity of the parties and specific issues are shielded), or the preparation of statistical summaries that show categories of issues as long as there are a sufficient number of categories to protect the confidentiality of parties and specific issues.