Dallas, Texas (February 1, 2022) – In a
yr that appeared to be dominated by COVID-19 and vaccinate
mandates, Texas had a number of legislative and case legislation developments
that impacted employers. Our group briefly summarizes among the
extra outstanding authorized developments of 2021 from the Lone Star
State.
Expanded Legal responsibility for Sexual Harassment Claims
Beneath new legal guidelines that took impact on September 1, 2021, the Texas
legislature considerably expanded sexual harassment protections
for workers. The brand new legal guidelines develop the scope of who could also be liable
for office sexual harassment, in addition to the deadline for
workers to convey sexual harassment claims.
First, Senate Invoice 45 extends legal responsibility for office sexual
harassment to all individuals or entities who make use of a number of
workers. Beforehand, Texas state legislation aligned with federal Title
VII in exempting companies with 14 or fewer workers from state
sexual harassment lawsuits.
Second, the legislation outlined a probably liable employer to incorporate
anybody who “acts instantly within the pursuits of an employer in
relation to an worker.” This has the potential to reveal
managers, supervisors, and maybe even co-workers, unbiased
contractors, distributors, or volunteers to particular person legal responsibility associated
to office sexual harassment.
Third, the legislation additionally requires employers to take “rapid
and acceptable” motion each time a sexual harassment declare is
made. Though it stays unclear how the courts will interpret
this new requirement, it will likely be crucial for Texas employers to
have sturdy supervisor coaching and reporting mechanisms so immediate
corrective motion could be taken when acceptable.
Lastly, Home Invoice 21 will increase the statute of limitations for
sexual harassment claims underneath state legislation from 180 days to 300 days
from the date of the alleged sexual harassment.
Notably, these adjustments solely apply to claims of sexual harassment
and don’t apply to different types of discrimination, resembling
harassment primarily based on race, colour, incapacity, nationwide origin, or
faith.
Paid Sick Depart Nonetheless Not Required for Non-public Employers
Regardless of quite a few legislative makes an attempt on the state stage,
non-public employers in Texas are nonetheless not required to offer
workers with paid sick depart underneath state legislation. Native ordinances
additionally didn’t fare properly within the courts. Authorized challenges filed
towards native ordinances in Austin, San Antonio, and Dallas
efficiently argued that the ordinances have been unconstitutional
as a result of they violated the Texas Minimal Wage Act.
Medical Marijuana Use Growth
Though the legalization of leisure marijuana use failed
to move within the 87th Texas Legislative Session, Governor Abbott
signed HB 1535 into legislation, which expands the state’s medical-use
or compassionate-use legislation. The brand new legislation, which turned efficient on
September 1, 2021, made the next adjustments:
- Elevated the utmost THC stage of low-THC hashish from .5% to
1% by weight. - Expanded qualifying circumstances to incorporate post-traumatic stress
dysfunction and all types of most cancers (not simply terminal most cancers as
beforehand allowed). - Established compassionate-use institutional evaluation boards to
consider and approve proposed analysis applications to review the
medical use of low-THC hashish.
Though the enlargement of medical marijuana doesn’t comprise any
employment protections or restrictions on drug testing, Texas
employers ought to anticipate an increase in lodging requests from customers
of low-THC hashish for medical functions.
Expanded Cures for Workers Referred to as to State Navy
Obligation
Beneath current Texas legislation, employers are prohibited from
terminating an worker known as to lively obligation or coaching with
state army forces. Employers additionally should adjust to sure
reinstatement rights so there’s not a lack of trip time,
seniority, or different advantages. Beforehand, if an employer didn’t
adjust to these necessities, an aggrieved worker had restricted
treatments and will solely file a criticism with the Texas Workforce
Fee. The brand new legislation (SB 484), which turned efficient on
September 1, 2021, amends the prevailing legislation by increasing the
obtainable treatments to incorporate a non-public proper of motion the place the
prevailing service member could be awarded any declaratory or
equitable reduction, or different acceptable reduction to incorporate financial
injury and price of the go well with and attorneys’ charges.
New Human Trafficking Prevention Legislation for Lodge Employers
The 87th Texas Legislature handed a number of measures that require
sure business entities to put up signage relating to the providers
and help that’s obtainable to victims of human
trafficking. HB 390, which is relevant to operators of
business lodging institutions, additionally incorporates sure
discrimination, retaliation, and coaching provisions associated to
workers. HB 390 defines a business lodge institution as a
resort, motel, or related companies providing greater than 10 rooms to
the general public for momentary lodging for a charge. The brand new legislation prohibits
an operator of a business lodging institution from
disciplining, retaliating towards, or in any other case discriminating
towards an worker for making a very good religion report of a suspected
act of human trafficking.
The legislation additionally requires business lodging institutions to put up
acceptable signage and requires all workers to finish an
annual human trafficking and consciousness program in accordance with
requirements set by the Texas Lawyer Common. New workers should
full this coaching inside 90 days of rent. Authorized
signage, coaching movies, and worker certifications are
obtainable here.
“Constitutional Carry”
Beneath the Firearm Carry Act of 2021, Texans who’re 21 or extra
years previous are actually approved to legally carry a handgun with no
license-to-carry allow, supplied they don’t seem to be in any other case prohibited
from possessing a firearm by state or federal legislation. The brand new legislation
turned efficient September 1, 2021.
The brand new legislation doesn’t stop or in any other case restrict the precise of
public or non-public employers to ban workers from carrying
firearms on their premises and makes it a Class C felony in the event that they do
so after they have oral or written discover that entry with a firearm
is prohibited. Property house owners should adjust to sure statutory
signage necessities in the event that they want to prohibit hid carry and
open carry.
The brand new legislation additionally imposes some restrictions on the precise to hold
a firearm, resembling making it an offense for a person to
possess a firearm or different prohibited weapon on sure premises,
together with, with out limitation, companies that derive at the very least 51%
of their enterprise from alcohol gross sales; a highschool, collegiate, or
skilled sporting occasion or interscholastic occasion (until
weapons concerned resembling a taking pictures competitors); a correctional
facility; a civil dedication facility; a state hospital or nursing
residence or on the premises of a psychological hospital, until approved; or
an amusement park.
Truthful Labor Requirements Act
On January 12, 2021, the U.S. Courtroom of Appeals for the Fifth
Circuit established a brand new framework for collective actions underneath
the Truthful Labor Requirements Act (FLSA). Departing from the two-step
class certification course of utilized by virtually each federal court docket
throughout the nation, the Fifth Circuit held in Swales v.
KLLM Transp. Servs., L.L.C., No. 19-60847 (fifth Cir. 2021),
that “a district court docket should rigorously scrutinize the realm of
‘equally located’ employees—and should achieve this from the
outset of the case.”
The Fifth Circuit held that courts ought to determine on the outset
of the case what info and authorized issues will likely be materials in
figuring out whether or not a gaggle of workers is “equally
located.” This consists of figuring out what might look like a
query on the deserves of the case, however is definitely a threshold
situation, resembling whether or not the putative class members are topic to a
legitimate arbitration settlement or, as was the case
in Swales, whether or not the putative class members have been
unbiased contractors or workers.
After making this dedication, the court docket might authorize
preliminary discovery essential to reply any threshold questions.
And, solely at that time, after a rigorous examination of the
putative class, might the court docket situation discover to potential opt-in
plaintiffs.
The Swales choice is simply binding on
district courts in Texas, Mississippi, and Louisiana. However for
employers in these states, the opinion will present higher
certainty early within the case concerning the extent of a possible class.
Though employers will possible bear elevated discovery prices
earlier in litigation, they’ll now be capable to work to restrict the
scope of a collective motion a lot earlier by demonstrating that the
potential collective motion members usually are not equally located,
reasonably than by transferring to decertify a conditionally licensed class
upon completion of discovery. Study extra about this choice in our
January 2021 alert “Fifth Circuit Eliminates ‘Conditional
Certification’ Process in FLSA Cases.“
COVID-19 Laws and Government Orders
Vaccines
On October 11, 2021, Governor Greg Abbott issued an govt
order considerably limiting non-public employers’ capacity to
require their workers to be vaccinated. The manager order
requires any entity that imposes a vaccine requirement to
accommodate objections “for any cause of non-public conscience,
primarily based on a non secular perception, or for medical causes, together with
prior restoration from COVID-19.”
In December, the Texas Workforce Fee clarified that whereas
an employer might nominally require their workers to obtain a
COVID-19 vaccine, they have to notify the worker of those broad
exemptions and course of these exemptions in good religion. The
exceptions created by Governor Abbott’s order are broader than
that created by Title VII or the ADA, and basically embrace any
private objection to a vaccine mandate.
For healthcare employees at amenities receiving federal funding,
Governor Abbott’s govt order has been pre-empted by the
vaccine rule issued by the Occupational Security and Well being
Administration. The order would have been pre-empted extra broadly
for all employers with 100 or extra workers, however on January 13,
2022, the U.S. Supreme Courtroom quickly stayed the OSHA rule for
massive employers.
As well as, the Texas legislature handed Senate Invoice 968 in
June of 2021, prohibiting any enterprise working in Texas from
requiring proof of shoppers’ vaccination standing or
post-infection restoration standing.
Pandemic Legal responsibility Safety Act
On June 14, 2021, Governor Abbot signed the “Pandemic
Legal responsibility Safety Act” into legislation, offering retroactive
safety to healthcare suppliers, first responders, and different
companies from sure types of civil legal responsibility. The legislation additionally
extends current authorized immunity to physicians, healthcare
suppliers, and first responders “throughout a man-made catastrophe,
pure catastrophe, or a healthcare emergency.” It additionally
typically excuses such professionals from legal responsibility for accidents
or loss of life “arising from care, therapy, or failure to
present care or therapy” associated to or impacted by the
pandemic.
The legislation creates excessive thresholds for plaintiffs searching for to claim
claims for accidents associated to publicity to COVID-19. In an effort to
preserve such a declare, a plaintiff should: present that the defendant
knew of and didn’t warn the plaintiff of a situation
“more likely to end result within the publicity” to COVID-19; present that
the defendant knowingly didn’t implement or adjust to
government-promulgated requirements, steerage, or protocols; and
present “dependable scientific proof” within the type of an
professional report that the defendant’s failure to warn or failure
to conform was the trigger the truth is of the plaintiff contracting
COVID-19. The plaintiff should file this professional report no later than
120 days after the defendant recordsdata a solution. If the plaintiff
fails to well timed produce a ample report, the court docket should dismiss
the case with prejudice and award the defendant cheap prices
and lawyer’s charges.
The content material of this text is meant to offer a normal
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