HBA-ATS H.B. 3214 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 3214 By: McCall Business & Industry 3/24/1999 Introduced BACKGROUND AND PURPOSE Under current standards set by the Texas Commission of Law Enforcement Officer Standards and Education, an applicant for a position as a law enforcement officer must undergo a thorough, comprehensive background investigation to determine whether the applicant is of good moral character. It is difficult to perform a thorough and comprehensive background if a current or former employer of an applicant provides only the dates of employment and a description of the position held. These employers may be unwilling to divulge more information because of fear that they may be held liable under the law for disclosing or withholding information about current and former employees. Although H.B. 3214 requires an employer to disclose job performance information about a current or former employee, upon request of a law enforcement agency, it provides immunity from civil liability for that disclosure or any damages proximately caused by that disclosure, unless the preponderance of the evidence proves that the information disclosed was known by that employer to be false at the time of the disclosure. Failure to disclose information to an agency constitutes grounds for a civil action for injunctive relief requiring disclosure on the part of an employer. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Title 11, Chapter 341, Government Code, by adding Subchapter D, as follows: CHAPTER D. DISCLOSURE BY EMPLOYER OF INFORMATION REGARDING CERTAIN EMPLOYEES OR FORMER EMPLOYEES WHO ARE LAW ENFORCEMENT APPLICANTS Sec. 341.101. DEFINITIONS. Defines "employee," "employer," "job performance," "law enforcement agency," "prospective employee," and "prospective employer." Sec. 341.102. AUTHORIZED DISCLOSURE. (a) Requires an employer to disclose job performance information about a current or former employee, upon request of a law enforcement agency (agency), so that a thorough background investigation for a person applying for employment as a peace officer may be made. Disclosure of information is required if all of the following conditions are met: _the request is made in writing; _the request is accompanied by a notarized authorization by the applicant releasing the employer of liability; and _the request and the authorization are presented to the employer by a sworn officer or other authorized representative of the employing law enforcement agency. (b) Provides that nondisclosure agreements between applicants and current or former employers will not apply to the release of information regarding an applicant's job performance to an agency requesting the information in compliance with this subchapter. Sec. 341.103. EXCEPTION TO CONFIDENTIALITY FOR REQUESTS FOR INFORMATION BETWEEN LAW ENFORCEMENT AGENCIES. Prohibits the application of the confidentiality provision contained in Section 143.089(g) (Personnel File), Local Government Code, for purposes of this subchapter only. Requires the release of the personnel file maintained for an agency's use if the agency processing an applicant requests job performance information from another agency, for purposes of this subchapter only. Sec. 341.104. INFORMATION PROVIDED TO APPLICANT FOR EMPLOYMENT. (a) Requires a prospective employer, on receipt of a written request by an applicant, to provide to the applicant, by the 30th day after the request is received, copies of all written communications from current and former employers of the applicant that may reasonably be believed to affect the applicant's possibility of employment with the prospective employer. (b) Provides that an applicant must make a request under Subsection (a) by the 30th day after the applicant completes the application process required by the prospective employer. Sec. 341.105. IMMUNITY FROM CIVIL LIABILITY; EMPLOYER REPRESENTATIVES. (a) Provides that an employer who discloses information about a current or former employee under Section 103.006 is immune from civil liability for that disclosure or any damages proximately caused by that disclosure, unless the preponderance of the evidence proves that the information disclosed was known by that employer to be false at the time of the disclosure. (b) Provides that this chapter applies to a managerial employee or other representative of the employer who is authorized to provide and who provides information in accordance with this chapter in the same manner that it applies to an employer. (c) Requires a court to award to the defendant reasonable and necessary attorney's fees and court costs in the absence of fraud or malice and on a finding by the court that the statements and information provided by the current or former employer were not false in an action under this section brought by the applicant. Sec. 341.106. CIVIL INJUNCTION. Authorizes an employer's refusal to disclose information to an agency in accordance with this section to constitute grounds for a civil action for injunctive relief requiring disclosure on the part of an employer. SECTION 2. Makes application of this Act prospective. SECTION 3. Effective date: September 1, 1999. SECTION 4. Emergency clause.