Agency Alleged Company Refused to Permit Disabled Worker to Exercise Bumping Rights in a Layoff
ATLANTA – Building Materials Manufacturing Corporation, a roofing materials manufacturer headquartered in Wayne, N.J., will pay $62,500 to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.
In its lawsuit, the EEOC charged that the employer unlawfully terminated a disabled worker from its Savannah facility when it refused to allow him to exercise his seniority rights to “bump” junior employees. According to the lawsuit, the employer’s contract with the United Steelworkers Union included a provision that allowed senior employees to remain employed by “bumping” less senior employees in any layoff situation. Bumping refers to a senior employee removing a less senior employee from a position and assuming the position for himself. However, Irvin Carter, who had lost his right hand in an accident at the facility nine years earlier, was denied the right to bump junior employees when the company performed a reduction in force in 2012.
According to the EEOC, the reason was Carter’s disability and/or his record of disability. The lawsuit alleges that GAF refused to permit Carter to bump into other positions based on an 11-pound lifting restriction contained in his nine-year-old medical evaluation. The EEOC said that at the time of the layoff, Carter’s lifting restriction had been increased to 90 pounds, and he would have been able to perform the jobs which only had a 50-pound lifting requirement.
Such alleged conduct violates the Americans with Disabilities Act (ADA). The EEOC filed suit on September 19, 2014 in U.S. District Court for the Southern District of Georgia (Civil Action No. 4:14-cv-00205) after first attempting to reach a pre-litigation settlement through its conciliation process. The consent decree settling the suit, in addition to monetary relief for the employee, includes provisions for equal employment opportunity training, reporting, and postings.
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on the agency’s website at www.eeoc.gov.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Agricultural Company Fired Driver Due to His Diabetes, Federal Agency Charged
DETROIT – Vita Plus Corporation, an agricultural company with a facility in Gagetown, Mich., violated federal law by discriminating against a truck driver because of his disability, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed on July 16.
According to the EEOC’s lawsuit, Vita Plus discriminated against Brian Kaczorowski because of his disability – non-insulin-dependent diabetes. On Sept. 19, 2013, Vita Plus hired Kaczorowski for a driver’s position, contingent on his passing a pre-employment physical. Beginning on Sept. 24, Kaczorowski worked three full days for Vita Plus – in training while riding along with other drivers. On Sept. 27, Vita Plus received Kaczorowski’s pre-employment physical report, in which the examining doctor wrongly assessed him as a direct threat due to his diabetes. As a result, Vita Plus fired Kaczorowski the following day.
Such alleged conduct violates Title I of the Americans with Disabilities Act (ADA), which prohibits employers from discriminating against applicants and employees because of disabilities. EEOC filed suit (EEOC v. Vita Plus Corp., Civil Action No. 1:15-cv-12533) in U.S. District Court for the Eastern District of Michigan after first attempting to reach a pre-litigation settlement through its conciliation process. EEOC is seeking injunctive relief prohibiting Vita-Plus from discriminating against other employees with disabilities, equitable relief to provide equal opportunities for qualified employees with disabilities, lost wages, compensatory and punitive damages, and other affirmative relief for Kaczorowski.
“An employer cannot deny employment opportunities to an otherwise qualified applicant simply because a disability is discovered during a pre-employment physical,” said EEOC Detroit Field Office Trial Attorney Omar Weaver. “Nor can an employer dodge its responsibility to conduct an individualized assessment of an applicant’s ability to perform the job in question.”
Vita Plus, headquartered in Madison, Wis., primarily manufactures livestock feed for dairy cows, beef cattle, and swine. It has facilities throughout the Midwest, including the Gagetown, Mich., facility where Kaczorowski worked.
The EEOC’s Detroit Field Office is part of the Indianapolis District Office, which oversees Michigan, Indiana, Kentucky, and parts of Ohio. EEOC is a federal agency that enforces federal laws prohibiting employment discrimination. Further information about EEOC is available on the agency’s website at www.eeoc.gov.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
[107th Congress Public Law 288]
[From the U.S. Government Printing Office]
Public Law 107-288
107th Congress
An Act
To amend title 38, United States Code, to revise and improve employment,
training, and placement services furnished to veterans, and for other
purposes. <<NOTE: Nov. 7, 2002 - [H.R. 4015]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress <<NOTE: Jobs for Veterans
Act.>> assembled,
SECTION 1. SHORT TITLE; REFERENCES TO TITLE 38, UNITED STATES CODE.
(a) Short Title.--This <<NOTE: 38 USC 101 note.>> Act may be cited
as the ``Jobs for Veterans Act''.
(b) References to Title 38, United States Code.--Except as otherwise
expressly provided, whenever in this Act an amendment or repeal is
expressed in terms of an amendment to, or repeal of, a section or other
provision, the reference shall be considered to be made to a section or
other provision of title 38, United States Code.
SEC. 2. PRIORITY OF SERVICE FOR VETERANS IN DEPARTMENT OF LABOR JOB
TRAINING PROGRAMS.
(a) Veterans' Job Training Assistance.--(1) Chapter 42 is amended by
adding at the end the following new section:
``Sec. 4215. Priority of service for veterans in Department of Labor job
training programs
``(a) Definitions.--In this section:
``(1) The term `covered person' means any of the following
individuals:
``(A) A veteran.
``(B) The spouse of any of the following
individuals:
``(i) Any veteran who died of a service-
connected disability.
``(ii) Any member of the Armed Forces serving
on active duty who, at the time of application for
assistance under this section, is listed, pursuant
to section 556 of title 37 and regulations issued
thereunder, by the Secretary concerned in one or
more of the following categories and has been so
listed for a total of more than 90 days: (I)
missing in action, (II) captured in line of duty
by a hostile force, or (III) forcibly detained or
interned in line of duty by a foreign government
or power.
``(iii) Any veteran who has a total disability
resulting from a service-connected disability.
``(iv) Any veteran who died while a disability
so evaluated was in existence.
[[Page 116 STAT. 2034]]
``(2) The term `qualified job training program' means any
workforce preparation, development, or delivery program or
service that is directly funded, in whole or in part, by the
Department of Labor and includes the following:
``(A) Any such program or service that uses
technology to assist individuals to access workforce
development programs (such as job and training
opportunities, labor market information, career
assessment tools, and related support services).
``(B) Any such program or service under the public
employment service system, one-stop career centers, the
Workforce Investment Act of 1998, a demonstration or
other temporary program, and those programs implemented
by States or local service providers based on Federal
block grants administered by the Department of Labor.
``(C) Any such program or service that is a
workforce development program targeted to specific
groups.
``(3) The term `priority of service' means, with respect to
any qualified job training program, that a covered person shall
be given priority over nonveterans for the receipt of
employment, training, and placement services provided under that
program, notwithstanding any other provision of law.
``(b) Entitlement to Priority of Service.--(1) A covered person is
entitled to priority of service under any qualified job training program
if the person otherwise meets the eligibility requirements for
participation in such program.
``(2) The Secretary of Labor may establish priorities among covered
persons for purposes of this section to take into account the needs of
disabled veterans and special disabled veterans, and such other factors
as the Secretary determines appropriate.
``(c) Administration of Programs at State and Local Levels.--An
entity of a State or a political subdivision of the State that
administers or delivers services under a qualified job training program
shall--
``(1) provide information and priority of service to covered
persons regarding benefits and services that may be obtained
through other entities or service providers; and
``(2) ensure that each covered person who applies to or who
is assisted by such a program is informed of the employment-
related rights and benefits to which the person is entitled
under this section.
``(d) Addition to Annual Report.--In the annual report required
under section 4107(c) of this title for the program year beginning in
2003 and each subsequent program year, the Secretary of Labor shall
evaluate whether covered persons are receiving priority of service and
are being fully served by qualified job training programs, and whether
the representation of veterans in such programs is in proportion to the
incidence of representation of veterans in the labor market, including
within groups that the Secretary may designate for priority under such
programs, if any.''.
(2) The table of sections at the beginning of chapter 42 is amended
by inserting after the item relating to section 4214 the following new
item:
``4215. Priority of service for veterans in Department of Labor job
training programs.''.
(b) Employment of Veterans With Respect to Federal Contracts.--(1)
Section 4212(a) is amended to read as follows:
[[Page 116 STAT. 2035]]
``(a)(1) Any contract in the amount of $100,000 or more entered into
by any department or agency of the United States for the procurement of
personal property and nonpersonal services (including construction) for
the United States, shall contain a provision requiring that the party
contracting with the United States take affirmative action to employ and
advance in employment qualified covered veterans. This section applies
to any subcontract in the amount of $100,000 or more entered into by a
prime contractor in carrying out any such contract.
``(2) <<NOTE: Regulations.>> In addition to requiring affirmative
action to employ such qualified covered veterans under such contracts
and subcontracts and in order to promote the implementation of such
requirement, the Secretary of Labor shall prescribe regulations
requiring that--
``(A) each such contractor for each such contract shall
immediately list all of its employment openings with the
appropriate employment service delivery system (as defined in
section 4101(7) of this title), and may also list such openings
with one-stop career centers under the Workforce Investment Act
of 1998, other appropriate service delivery points, or America's
Job Bank (or any additional or subsequent national electronic
job bank established by the Department of Labor), except that
the contractor may exclude openings for executive and senior
management positions and positions which are to be filled from
within the contractor's organization and positions lasting three
days or less;
``(B) each such employment service delivery system shall
give such qualified covered veterans priority in referral to
such employment openings; and
``(C) each such employment service delivery system shall
provide a list of such employment openings to States, political
subdivisions of States, or any private entities or organizations
under contract to carry out employment, training, and placement
services under chapter 41 of this title.
``(3) In this section:
``(A) The term `covered veteran' means any of the following
veterans:
``(i) Disabled veterans.
``(ii) Veterans who served on active duty in the
Armed Forces during a war or in a campaign or expedition
for which a campaign badge has been authorized.
``(iii) Veterans who, while serving on active duty
in the Armed Forces, participated in a United States
military operation for which an Armed Forces service
medal was awarded pursuant to Executive Order No. 12985
(61 Fed. Reg. 1209).
``(iv) Recently separated veterans.
``(B) The term `qualified', with respect to an employment
position, means having the ability to perform the essential
functions of the position with or without reasonable
accommodation for an individual with a disability.''.
(2)(A) Section 4212(c) is amended--
(i) by striking ``suitable''; and
(ii) by striking ``subsection (a)(2) of this section'' and
inserting ``subsection (a)(2)(B)''.
(B) Section 4212(d)(1) is amended--
(i) in the matter preceding subparagraph (A), by striking
``of this section'' after ``subsection (a)''; and
[[Page 116 STAT. 2036]]
(ii) by amending subparagraphs (A) and (B) to read as
follows:
``(A) the number of employees in the workforce of such
contractor, by job category and hiring location, and the number
of such employees, by job category and hiring location, who are
qualified covered veterans;
``(B) the total number of new employees hired by the
contractor during the period covered by the report and the
number of such employees who are qualified covered veterans;
and''.
(C) Section 4212(d)(2) is amended by striking ``of this subsection''
after ``paragraph (1)''.
(D) Section 4211(6) is amended by striking ``one-year period'' and
inserting ``three-year period''.
(3) <<NOTE: Applicability. Effective date.>> The amendments made by
this subsection shall apply with respect to contracts entered into on or
after the first day of the first month that begins 12 months after the
date of the enactment of this Act.
(c) Employment Within the Federal Government.--(1) Section
4214(a)(1) is amended--
(A) in the first sentence, by striking ``life'' and all that
follows and inserting ``life.''; and
(B) in the second sentence, by striking ``major'' and
inserting ``uniquely qualified''.
(2) Section 4214(b) is amended--
(A) in paragraph (1), by striking ``readjustment'' and
inserting ``recruitment'';
(B) in paragraph (2), by striking ``to--'' and all that
follows through the period at the end and inserting ``to
qualified covered veterans.'';
(C) in paragraph (3), to read as follows:
``(3) A qualified covered veteran may receive such an appointment at
any time.''.
(3)(A) Section 4214(a) is amended--
(i) in the third sentence of paragraph (1), by striking
``disabled veterans and certain veterans of the Vietnam era and
of the post-Vietnam era'' and inserting ``qualified covered
veterans (as defined in paragraph (2)(B))''; and
(ii) in paragraph (2), to read as follows:
``(2) In this section:
``(A) The term `agency' has the meaning given the term
`department or agency' in section 4211(5) of this title.
``(B) The term `qualified covered veteran' means a veteran
described in section 4212(a)(3) of this title.''.
(B) Clause (i) of section 4214(e)(2)(B) is amended by striking ``of
the Vietnam era''.
(C) Section 4214(g) is amended--
(i) by striking ``qualified'' the first place it occurs and
all that follows through ``era'' the first place it occurs and
inserting ``qualified covered veterans''; and
(ii) by striking ``under section 1712A of this title'' and
all that follows and inserting ``under section 1712A of this
title.''.
(4) <<NOTE: Applicability. 38 USC 4214 note.>> The amendments made
by this subsection shall apply to qualified covered veterans without
regard to any limitation relating to the date of the veteran's last
discharge or release from active duty that may have otherwise applied
under section 4214(b)(3)
[[Page 116 STAT. 2037]]
as in effect on the date before the date of the enactment of this Act.
SEC. 3. FINANCIAL AND NON-FINANCIAL PERFORMANCE INCENTIVE AWARDS FOR
QUALITY VETERANS EMPLOYMENT, TRAINING, AND PLACEMENT
SERVICES.
(a) Performance Incentive Awards for Quality Employment, Training,
and Placement Services.--Chapter 41 is amended by adding at the end the
following new section:
``Sec. 4112. Performance incentive awards for quality employment,
training, and placement services
``(a) Criteria for Performance Incentive Awards.--(1) For purposes
of carrying out a program of performance incentive awards under section
4102A(c)(2)(A)(i)(III) of this title, the Secretary, acting through the
Assistant Secretary of Labor for Veterans' Employment and Training,
shall establish criteria for performance incentive awards programs to be
administered by States to--
``(A) encourage the improvement and modernization of
employment, training, and placement services provided under this
chapter; and
``(B) recognize eligible employees for excellence in the
provision of such services or for having made demonstrable
improvements in the provision of such services.
``(2) The Secretary shall establish such criteria in consultation
with representatives of States, political subdivisions of States, and
other providers of employment, training, and placement services under
the Workforce Investment Act of 1998 consistent with the performance
measures established under section 4102A(b)(7) of this title.
``(b) Form of Awards.--Under the criteria established by the
Secretary for performance incentive awards to be administered by States,
an award under such criteria may be a cash award or such other
nonfinancial awards as the Secretary may specify.
``(c) Relationship of Award to Grant Program and Employee
Compensation.--Performance incentive cash awards under this section--
``(1) shall be made from amounts allocated from the grant or
contract amount for a State for a program year under section
4102A(c)(7) of this title; and
``(2) is in addition to the regular pay of the recipient.
``(d) Eligible Employee Defined.--In this section, the term
`eligible employee' means any of the following:
``(1) A disabled veterans' outreach program specialist.
``(2) A local veterans' employment representative.
``(3) An individual providing employment, training, and
placement services to veterans under the Workforce Investment
Act of 1998 or through an employment service delivery system (as
defined in section 4101(7) of this title).''.
[[Page 116 STAT. 2038]]
(b) Clerical Amendment.--The table of sections at the beginning of
chapter 41 is amended by adding at the end the following new item:
``4112. Performance incentive awards for quality employment, training,
and placement services.''.
SEC. 4. REFINEMENT OF JOB TRAINING AND PLACEMENT FUNCTIONS OF THE
DEPARTMENT.
(a) Revision of Department Level Senior Officials and Functions.--
(1) Sections 4102A and 4103 are amended to read as follows:
``Sec. 4102A. Assistant Secretary of Labor for Veterans' Employment and
Training; program functions; Regional
Administrators
``(a) Establishment of Position of Assistant Secretary of Labor for
Veterans' Employment and Training.--(1) There is established within the
Department of Labor an Assistant Secretary of Labor for Veterans'
Employment and Training, appointed by the President by and with the
advice and consent of the Senate, who shall formulate and implement all
departmental policies and procedures to carry out (A) the purposes of
this chapter, chapter 42, and chapter 43 of this title, and (B) all
other Department of Labor employment, unemployment, and training
programs to the extent they affect veterans.
``(2) The employees of the Department of Labor administering chapter
43 of this title shall be administratively and functionally responsible
to the Assistant Secretary of Labor for Veterans' Employment and
Training.
``(3)(A) There shall be within the Department of Labor a Deputy
Assistant Secretary of Labor for Veterans' Employment and Training. The
Deputy Assistant Secretary shall perform such functions as the Assistant
Secretary of Labor for Veterans' Employment and Training prescribes.
``(B) No individual may be appointed as a Deputy Assistant Secretary
of Labor for Veterans' Employment and Training unless the individual has
at least five years of service in a management position as an employee
of the Federal civil service or comparable service in a management
position in the Armed Forces. For purposes of determining such service
of an individual, there shall be excluded any service described in
subparagraphs (A), (B), and (C) of section 308(d)(2) of this title.
``(b) Program Functions.--The Secretary shall carry out the
following functions:
``(1) Except as expressly provided otherwise, carry out all
provisions of this chapter and chapter 43 of this title through
the Assistant Secretary of Labor for Veterans' Employment and
Training and administer through such Assistant Secretary all
programs under the jurisdiction of the Secretary for the
provision of employment and training services designed to meet
the needs of all veterans and persons eligible for services
furnished under this chapter.
``(2) In order to make maximum use of available resources in
meeting such needs, encourage all such programs, and all
grantees and contractors under such programs to enter into
cooperative arrangements with private industry and business
concerns (including small business concerns owned by veterans
[[Page 116 STAT. 2039]]
or disabled veterans), educational institutions, trade
associations, and labor unions.
``(3) Ensure that maximum effectiveness and efficiency are
achieved in providing services and assistance to eligible
veterans under all such programs by coordinating and consulting
with the Secretary of Veterans Affairs with respect to (A)
programs conducted under other provisions of this title, with
particular emphasis on coordination of such programs with
readjustment counseling activities carried out under section
1712A of this title, apprenticeship or other on-the-job training
programs carried out under section 3687 of this title, and
rehabilitation and training activities carried out under chapter
31 of this title and (B) determinations covering veteran
population in a State.
``(4) Ensure that employment, training, and placement
activities are carried out in coordination and cooperation with
appropriate State public employment service officials.
``(5) Subject to subsection (c), make available for use in
each State by grant or contract such funds as may be necessary
to support--
``(A) disabled veterans' outreach program
specialists appointed under section 4103A(a)(1) of this
title,
``(B) local veterans' employment representatives
assigned under section 4104(b) of this title, and
``(C) the reasonable expenses of such specialists
and representatives described in subparagraphs (A) and
(B), respectively, for training, travel, supplies, and
other business expenses, including travel expenses and
per diem for attendance at the National Veterans'
Employment and Training Services Institute established
under section 4109 of this title.
``(6) Monitor and supervise on a continuing basis the
distribution and use of funds provided for use in the States
under paragraph (5).
``(7) Establish, and update as appropriate, a comprehensive
performance accountability system (as described in subsection
(f)) and carry out annual performance reviews of veterans
employment, training, and placement services provided through
employment service delivery systems, including through disabled
veterans' outreach program specialists and through local
veterans' employment representatives in States receiving grants,
contracts, or awards under this chapter.
``(c) Conditions for Receipt of Funds.--(1) The distribution and use
of funds under subsection (b)(5) in order to carry out sections 4103A(a)
and 4104(a) of this title shall be subject to the continuing supervision
and monitoring of the Secretary and shall not be governed by the
provisions of any other law, or any regulations prescribed thereunder,
that are inconsistent with this section or section 4103A or 4104 of this
title.
``(2)(A) A State shall submit to the Secretary an application for a
grant or contract under subsection (b)(5). The application shall contain
the following information:
``(i) A plan that describes the manner in which the State
shall furnish employment, training, and placement services
required under this chapter for the program year, including a
description of--
[[Page 116 STAT. 2040]]
``(I) duties assigned by the State to disabled
veterans' outreach program specialists and local
veterans' employment representatives consistent with the
requirements of sections 4103A and 4104 of this title;
``(II) the manner in which such specialists and
representatives are integrated in the employment service
delivery systems in the State; and
``(III) the program of performance incentive awards
described in section 4112 of this title in the State for
the program year.
``(ii) The veteran population to be served.
``(iii) Such additional information as the Secretary may
require to make a determination with respect to awarding a grant
or contract to the State.
``(B)(i) Subject to the succeeding provisions of this subparagraph,
of the amount available under subsection (b)(5) for a fiscal year, the
Secretary shall make available to each State with an application
approved by the Secretary an amount of funding in proportion to the
number of veterans seeking employment using such criteria as the
Secretary may establish in regulation, including civilian labor force
and unemployment data, for the State on an annual basis. The proportion
of funding shall reflect the ratio of--
``(I) the total number of veterans residing in the State
that are seeking employment; to
``(II) the total number of veterans seeking employment in
all States.
``(ii) <<NOTE: Effective date.>> The Secretary shall phase in over
the three fiscal-year period that begins on October 1, 2002, the manner
in which amounts are made available to States under subsection (b)(5)
and this subsection, as amended by the Jobs for Veterans Act.
``(iii) In carrying out this paragraph, the Secretary may establish
minimum funding levels and hold-harmless criteria for States.
``(3)(A)(i) As a condition of a grant or contract under this section
for a program year, in the case of a State that the Secretary determines
has an entered-employment rate for veterans that is deficient for the
preceding program year, the State shall develop a corrective action plan
to improve that rate for veterans in the State.
``(ii) The State shall submit the corrective action plan to the
Secretary for approval, and if approved, shall expeditiously implement
the plan.
``(iii) If the Secretary does not approve a corrective action plan
submitted by the State under clause (i), the Secretary shall take such
steps as may be necessary to implement corrective actions in the State
to improve the entered-employment rate for veterans in that State.
``(B) <<NOTE: Regulations.>> To carry out subparagraph (A), the
Secretary shall establish in regulations a uniform national threshold
entered-employment rate for veterans for a program year by which
determinations of deficiency may be made under subparagraph (A).
``(C) In making a determination with respect to a deficiency under
subparagraph (A), the Secretary shall take into account the applicable
annual unemployment data for the State and consider other factors, such
as prevailing economic conditions, that affect performance of
individuals providing employment, training, and placement services in
the State.
[[Page 116 STAT. 2041]]
``(4) In determining the terms and conditions of a grant or contract
under which funds are made available to a State in order to carry out
section 4103A or 4104 of this title, the Secretary shall take into
account--
``(A) the results of reviews, carried out pursuant to
subsection (b)(7), of the performance of the employment,
training, and placement service delivery system in the State,
and
``(B) the monitoring carried out under this section.
``(5) Each grant or contract by which funds are made available to a
State shall contain a provision requiring the recipient of the funds--
``(A) to comply with the provisions of this chapter; and
``(B) on an annual basis, to notify the Secretary of, and
provide supporting rationale for, each nonveteran who is
employed as a disabled veterans' outreach program specialist and
local veterans' employment representative for a period in excess
of 6 months.
``(6) Each State shall coordinate employment, training, and
placement services furnished to veterans and eligible persons under this
chapter with such services furnished with respect to such veterans and
persons under the Workforce Investment Act of 1998 and the Wagner-Peyser
Act.
``(7) With respect to program years beginning during or after fiscal
year 2004, one percent of the amount of a grant or contract under which
funds are made available to a State in order to carry out section 4103A
or 4104 of this title for the program year shall be for the purposes of
making cash awards under the program of performance incentive awards
described in section 4112 of this title in the State.
``(d) Participation in Other Federally Funded Job Training
Programs.--The Assistant Secretary of Labor for Veterans' Employment and
Training shall promote and monitor participation of qualified veterans
and eligible persons in employment and training opportunities under
title I of the Workforce Investment Act of 1998 and other federally
funded employment and training programs.
``(e) Regional Administrators.--(1) The Secretary shall assign to
each region for which the Secretary operates a regional office a
representative of the Veterans' Employment and Training Service to serve
as the Regional Administrator for Veterans' Employment and Training in
such region.
``(2) Each such Regional Administrator shall carry out such duties
as the Secretary may require to promote veterans employment and
reemployment within the region that the Administrator serves.
``(f) Establishment <<NOTE: Deadline.>> of Performance Standards and
Outcomes Measures.--(1) By not later than 6 months after the date of the
enactment of this section, the Assistant Secretary of Labor for
Veterans' Employment and Training shall establish and implement a
comprehensive performance accountability system to measure the
performance of employment service delivery systems, including disabled
veterans' outreach program specialists and local veterans' employment
representatives providing employment, training, and placement services
under this chapter in a State to provide accountability of that State to
the Secretary for purposes of subsection (c).
``(2) Such standards and measures shall--
[[Page 116 STAT. 2042]]
``(A) be consistent with State performance measures
applicable under section 136(b) of the Workforce Investment Act
of 1998; and
``(B) be appropriately weighted to provide special
consideration for placement of (i) veterans requiring intensive
services (as defined in section 4101(9) of this title), such as
special disabled veterans and disabled veterans, and (ii)
veterans who enroll in readjustment counseling under section
1712A of this title.
``(g) Authority to Provide Technical Assistance to States.--The
Secretary may provide such technical assistance as the Secretary
determines appropriate to any State that the Secretary determines has,
or may have, an entered-employment rate in the State that is deficient,
as determined under subsection (c)(3) with respect to a program year,
including assistance in the development of a corrective action plan
under that subsection.
``Sec. 4103. Directors and Assistant Directors for Veterans' Employment
and Training; additional Federal personnel
``(a) Directors and Assistant Directors.--(1) The Secretary shall
assign to each State a representative of the Veterans' Employment and
Training Service to serve as the Director for Veterans' Employment and
Training, and shall assign full-time Federal clerical or other support
personnel to each such Director.
``(2) Each Director for Veterans' Employment and Training for a
State shall, at the time of appointment, have been a bona fide resident
of the State for at least two years.
``(3) Full-time Federal clerical or other support personnel assigned
to Directors for Veterans' Employment and Training shall be appointed in
accordance with the provisions of title 5 governing appointments in the
competitive service and shall be paid in accordance with the provisions
of chapter 51 and subchapter III of chapter 53 of title 5.
``(b) Additional Federal Personnel.--The Secretary may also assign
as supervisory personnel such representatives of the Veterans'
Employment and Training Service as the Secretary determines appropriate
to carry out the employment, training, and placement services required
under this chapter, including Assistant Directors for Veterans'
Employment and Training.''.
(2) The items relating to sections 4102A and 4103, respectively, in
the table of sections at the beginning of chapter 41 are amended to read
as follows:
``4102A. Assistant Secretary of Labor for Veterans' Employment and
Training; program functions; Regional Administrators.
``4103. Directors and Assistant Directors for Veterans' Employment and
Training; additional Federal personnel.''.
(3)(A)(i) Section 4104A is repealed.
(ii) The table of sections at the beginning of chapter 41 is amended
by striking the item relating to section 4104A.
(B) Section 4107(b) is amended by striking ``The Secretary shall
establish definitive performance standards'' and inserting ``The
Secretary shall apply performance standards established under section
4102A(f) of this title''.
(4) <<NOTE: 38 USC 4102A note.>> The amendments made by this
subsection shall take effect on the date of the enactment of this Act,
and apply for program
[[Page 116 STAT. 2043]]
and fiscal years under chapter 41 of title 38, United States Code,
beginning on or after such date.
(b) Revision of Statutorily Defined Duties of Disabled Veterans'
Outreach Program Specialists and Local Veterans' Employment
Representatives.--(1) Section 4103A is amended by striking all after the
heading and inserting the following:
``(a) Requirement for Employment by States of a Sufficient Number of
Specialists.--(1) Subject to approval by the Secretary, a State shall
employ such full- or part-time disabled veterans' outreach program
specialists as the State determines appropriate and efficient to carry
out intensive services under this chapter to meet the employment needs
of eligible veterans with the following priority in the provision of
services:
``(A) Special disabled veterans.
``(B) Other disabled veterans.
``(C) Other eligible veterans in accordance with priorities
determined by the Secretary taking into account applicable rates
of unemployment and the employment emphases set forth in chapter
42 of this title.
``(2) In the provision of services in accordance with this
subsection, maximum emphasis in meeting the employment needs of veterans
shall be placed on assisting economically or educationally disadvantaged
veterans.
``(b) Requirement for Qualified Veterans.--A State shall, to the
maximum extent practicable, employ qualified veterans to carry out the
services referred to in subsection (a). Preference shall be given in the
appointment of such specialists to qualified disabled veterans.''.
(2) Section 4104 is amended by striking all after the heading and
inserting the following:
``(a) Requirement for Employment by States of a Sufficient Number of
Representatives.--Subject to approval by the Secretary, a State shall
employ such full- and part-time local veterans' employment
representatives as the State determines appropriate and efficient to
carry out employment, training, and placement services under this
chapter.
``(b) Principal Duties.--As principal duties, local veterans'
employment representatives shall--
``(1) conduct outreach to employers in the area to assist
veterans in gaining employment, including conducting seminars
for employers and, in conjunction with employers, conducting job
search workshops and establishing job search groups; and
``(2) facilitate employment, training, and placement
services furnished to veterans in a State under the applicable
State employment service delivery systems.
``(c) Requirement for Qualified Veterans and Eligible Persons.--A
State shall, to the maximum extent practicable, employ qualified
veterans or eligible persons to carry out the services referred to in
subsection (a). Preference shall be accorded in the following order:
``(1) To qualified service-connected disabled veterans.
``(2) If no veteran described in paragraph (1) is available,
to qualified eligible veterans.
``(3) If no veteran described in paragraph (1) or (2) is
available, then to qualified eligible persons.
``(d) Reporting.--Each local veterans' employment representative
shall be administratively responsible to the manager of the
[[Page 116 STAT. 2044]]
employment service delivery system and shall provide reports, not less
frequently than quarterly, to the manager of such office and to the
Director for Veterans' Employment and Training for the State regarding
compliance with Federal law and regulations with respect to special
services and priorities for eligible veterans and eligible persons.''.
(3) <<NOTE: Effective date. 38 USC 4103A note.>> The amendments made
by this subsection shall take effect on the date of the enactment of
this Act, and apply for program years under chapter 41 of title 38,
United States Code, beginning on or after such date.
(c) Requirement <<NOTE: Deadline. 38 USC 4215 note.>> To Promptly
Establish One-Stop Employment Services.--By not later than 18 months
after the date of the enactment of this Act, the Secretary of Labor
shall provide one-stop services and assistance to covered persons
electronically by means of the Internet, as defined in section 231(e)(3)
of the Communications Act of 1934, and such other electronic means to
enhance the delivery of such services and assistance.
(d) Requirement for Budget Line Item for Training Services
Institute.--(1) The last sentence of section 4106(a) is amended to read
as follows: ``Each budget submission with respect to such funds shall
include a separate listing of the amount for the National Veterans'
Employment and Training Services Institute together with information
demonstrating the compliance of such budget submission with the funding
requirements specified in the preceding sentence.''.
(2) <<NOTE: 38 USC 4106 note.>> The amendment made by paragraph (1)
shall take effect on the date of the enactment of this Act, and apply to
budget submissions for fiscal year 2004 and each subsequent fiscal year.
(e) Conforming Amendments.--(1) Section 4107(c)(5) is amended by
striking ``(including the need'' and all that follows through
``representatives)''.
(2) Section 3117(a)(2)(B) is amended to read as follows:
``(B) utilization of employment, training, and placement
services under chapter 41 of this title; and''.
SEC. 5. ADDITIONAL IMPROVEMENTS IN VETERANS EMPLOYMENT AND TRAINING
SERVICES.
(a) Inclusion of Intensive Services.--(1)(A) Section 4101 is amended
by adding at the end the following new paragraph:
``(9) The term `intensive services' means local employment
and training services of the type described in section 134(d)(3)
of the Workforce Investment Act of 1998.''.
(B) Section 4102 is amended by striking ``job and job training
counseling service program,'' and inserting ``job and job training
intensive services program,''.
(C) Section 4106(a) is amended by striking ``proper counseling'' and
inserting ``proper intensive services''.
(D) Section 4107(a) is amended by striking ``employment counseling
services'' and inserting ``intensive services''.
(E) Section 4107(c)(1) is amended by striking ``the number
counseled'' and inserting ``the number who received intensive
services''.
(F) Section 4109(a) is amended by striking ``counseling,'' each
place it appears and inserting ``intensive services,''.
(2) <<NOTE: Effective date. 38 USC 4101 note.>> The amendments made
by paragraph (1) shall take effect on the date of the enactment of this
Act.
[[Page 116 STAT. 2045]]
(b) Additional VETS Duty To Implement Transitions to Civilian
Careers.--(1)(A) Section 4102 is amended by striking the period and
inserting ``, including programs carried out by the Veterans' Employment
and Training Service to implement all efforts to ease the transition of
servicemembers to civilian careers that are consistent with, or an
outgrowth of, the military experience of the servicemembers.''.
(B) Such section is further amended by striking ``and veterans of
the Vietnam era'' and inserting ``and veterans who served on active duty
during a war or in a campaign or expedition for which a campaign badge
has been authorized''.
(2) <<NOTE: Effective date. 38 USC 4102 note.>> The amendments made
by paragraph (1) shall take effect on the date of the enactment of this
Act.
(c) Modernization of Employment Service Delivery Points To Include
Technological Innovations.--(1) Section 4101(7) is amended to read as
follows:
``(7) The term `employment service delivery system' means a
service delivery system at which or through which labor exchange
services, including employment, training, and placement
services, are offered in accordance with the Wagner-Peyser
Act.''.
(2) <<NOTE: Effective date. 38 USC 4101 note.>> The amendments made
by paragraph (1) shall take effect on the date of the enactment of this
Act.
(d) Increase in Accuracy of Reporting Services Furnished to
Veterans.--(1)(A) Section 4107(c)(1) is amended--
(i) by striking ``veterans of the Vietnam era,''; and
(ii) by striking ``and eligible persons who registered for
assistance with'' and inserting ``eligible persons, recently
separated veterans (as defined in section 4211(6) of this
title), and servicemembers transitioning to civilian careers who
registered for assistance with, or who are identified as
veterans by,''.
(B) Section 4107(c)(2) is amended--
(i) by striking ``the job placement rate'' the first place
it appears and inserting ``the rate of entered employment (as
determined in a manner consistent with State performance
measures applicable under section 136(b) of the Workforce
Investment Act of 1998)''; and
(ii) by striking ``the job placement rate'' the second place
it appears and inserting ``such rate of entered employment (as
so determined)''.
(C) Section 4107(c)(4) is amended by striking ``sections 4103A and
4104'' and inserting ``section 4212(d)''.
(D) Section 4107(c) is amended--
(i) by striking ``and'' at the end of paragraph (4);
(ii) by striking the period at the end of paragraph (5) and
inserting ``; and''; and
(iii) by adding at the end the following new paragraph:
``(6) a report on the operation during the preceding program
year of the program of performance incentive awards for quality
employment services under section 4112 of this title.''.
(E) <<NOTE: Deadline. Reports.>> Section 4107(b), as amended by
section 4(a)(3)(B), is further amended by striking the second sentence
and inserting the following: ``Not later than February 1 of each year,
the Secretary shall report to the Committees on Veterans' Affairs of the
Senate and the House of Representatives on the performance of States and
organizations and entities carrying out employment, training,
[[Page 116 STAT. 2046]]
and placement services under this chapter, as measured under subsection
(b)(7) of section 4102A of this title. In the case of a State that the
Secretary determines has not met the minimum standard of performance
(established by the Secretary under subsection (f) of such section), the
Secretary shall include an analysis of the extent and reasons for the
State's failure to meet that minimum standard, together with the State's
plan for corrective action during the succeeding year.''.
(2) <<NOTE: Applicability. 38 USC 4107 note.>> The amendments made
by paragraph (1) shall apply to reports for program years beginning on
or after July 1, 2003.
(e) Clarification of Authority of NVETSI To Provide Training for
Personnel of Other Departments and Agencies.--Section 4109 is amended by
adding at the end the following new subsection:
``(c)(1) Nothing in this section shall be construed as preventing
the Institute to enter into contracts or agreements with departments or
agencies of the United States or of a State, or with other
organizations, to carry out training of personnel of such departments,
agencies, or organizations in the provision of services referred to in
subsection (a).
``(2) All proceeds collected by the Institute under a contract or
agreement referred to in paragraph (1) shall be applied to the
applicable appropriation.''.
SEC. 6. <<NOTE: 38 USC 4100 note.>> COMMITTEE TO RAISE EMPLOYER
AWARENESS OF SKILLS OF VETERANS AND BENEFITS OF HIRING
VETERANS.
(a) Establishment of Committee.--There is established within the
Department of Labor a committee to be known as the President's National
Hire Veterans Committee (hereinafter in this section referred to as the
``Committee'').
(b) Duties.--The Committee shall establish and carry out a national
program to do the following:
(1) To furnish information to employers with respect to the
training and skills of veterans and disabled veterans, and the
advantages afforded employers by hiring veterans with such
training and skills.
(2) To facilitate employment of veterans and disabled
veterans through participation in America's Career Kit national
labor exchange, and other means.
(c) Membership.--(1) The Secretary of Labor shall appoint 15
individuals to serve as members of the Committee, of whom one shall be
appointed from among representatives nominated by each organization
described in subparagraph (A) and of whom eight shall be appointed from
among representatives nominated by organizations described in
subparagraph (B).
(A) Organizations described in this subparagraph are the
following:
(i) The Ad Council.
(ii) The National Committee for Employer Support of
the Guard and Reserve.
(iii) Veterans' service organizations that have a
national employment program.
(iv) State employment security agencies.
(v) One-stop career centers.
(vi) State departments of veterans affairs.
(vii) Military service organizations.
[[Page 116 STAT. 2047]]
(B) Organizations described in this subparagraph are such
businesses, small businesses, industries, companies in the
private sector that furnish placement services, civic groups,
workforce investment boards, and labor unions as the Secretary
of Labor determines appropriate.
(2) The following shall be ex officio, nonvoting members of the
Committee:
(A) The Secretary of Veterans Affairs.
(B) The Secretary of Defense.
(C) The Assistant Secretary of Labor for Veterans'
Employment and Training.
(D) The Administrator of the Small Business Administration.
(E) The Postmaster General.
(F) The Director of the Office of Personnel Management.
(3) A vacancy in the Committee shall be filled in the manner in
which the original appointment was made.
(d) Administrative Matters.--(1) The Committee shall meet not less
frequently than once each calendar quarter.
(2) The Secretary of Labor shall appoint the chairman of the
Committee.
(3)(A) Members of the Committee shall serve without compensation.
(B) Members of the Committee shall be allowed reasonable and
necessary travel expenses, including per diem in lieu of subsistence, at
rates authorized for persons serving intermittently in the Government
service in accordance with the provisions of subchapter I of chapter 57
of title 5 while away from their homes or regular places of business in
the performance of the responsibilities of the Committee.
(4) The Secretary of Labor shall provide staff and administrative
support to the Committee to assist it in carrying out its duties under
this section. The Secretary shall assure positions on the staff of the
Committee include positions that are filled by individuals that are now,
or have ever been, employed as one of the following:
(A) Staff of the Assistant Secretary of Labor for Veterans'
Employment and Training under section 4102A of title 38, United
States Code as in effect on the date of the enactment of this
Act.
(B) Directors for Veterans' Employment and Training under
section 4103 of such title as in effect on such date.
(C) Assistant Director for Veterans' Employment and Training
under such section as in effect on such date.
(D) Disabled veterans' outreach program specialists under
section 4103A of such title as in effect on such date.
(E) Local veterans' employment representatives under section
4104 of such title as in effect on such date.
(5) Upon request of the Committee, the head of any Federal
department or agency may detail, on a nonreimbursable basis, any of the
personnel of that department or agency to the Committee to assist it in
carrying out its duties.
(6) The Committee may contract with and compensate government and
private agencies or persons to furnish information to employers under
subsection (b)(1) without regard to section 3709 of the Revised Statutes
(41 U.S.C. 5).
[[Page 116 STAT. 2048]]
(e) Report.--Not <<NOTE: Deadlines.>> later than December 31, 2003,
2004, and 2005, the Secretary of Labor shall submit to Congress a report
on the activities of the Committee under this section during the
previous fiscal year, and shall include in such report data with respect
to placement and retention of veterans in jobs attributable to the
activities of the Committee.
(f) Termination.--The Committee shall terminate 60 days after
submitting the report that is due on December 31, 2005.
(g) Authorization of Appropriations.--There are authorized to be
appropriated to the Secretary of Labor from the employment security
administration account (established in section 901 of the Social
Security Act (42 U.S.C. 1101)) in the Unemployment Trust Fund $3,000,000
for each of fiscal years 2003 through 2005 to carry out this section.
SEC. 7. <<NOTE: 38 USC 4100 note.>> REPORT ON IMPLEMENTATION OF
EMPLOYMENT REFORMS.
(a) Study.--The Comptroller General of the United States shall
conduct a study on the implementation by the Secretary of Labor of the
provisions of this Act during the program years that begin during fiscal
years 2003 and 2004. The study shall include an assessment of the
modifications under sections 2 through 5 of this Act of the provisions
of title 38, United States Code, and an evaluation of the impact of
those modifications, and of the actions of the President's National Hire
Veterans Committee under section 6 of this Act, to the provision of
employment, training, and placement services provided to veterans under
that title.
(b) Report.--Not <<NOTE: Deadline.>> later than 6 months after the
conclusion of the program year that begins during fiscal year 2004, the
Comptroller General shall submit to Congress a report on the study
conducted under subsection (a). The report shall include such
recommendations as the Comptroller General determines appropriate,
including recommendations for legislation or administrative action.
Approved November 7, 2002.
LEGISLATIVE HISTORY--H.R. 4015:
---------------------------------------------------------------------------
HOUSE REPORTS: No. 107-476 (Comm. on Veterans' Affairs).
CONGRESSIONAL RECORD, Vol. 148 (2002):
May 20, 21, considered and passed House.
Oct. 15, considered and passed Senate, amended.
Oct. 16, House concurred in Senate amendments.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
1
CHAPTER 819. TEXAS WORKFORCE COMMISSION CIVIL RIGHTS DIVISION
ADOPTED RULES WITH PREAMBLE TO BE SUBMITTED TO THE TEXAS
REGISTER. THIS DOCUMENT WILL HAVE NO SUBSTANTIVE CHANGES BUT IS
SUBJECT TO FORMATTING CHANGES AS REQUIRED BY THE TEXAS REGISTER.
ON JANUARY 23, 2007, THE TEXAS WORKFORCE COMMISSION ADOPTED THE
BELOW RULES WITH PREAMBLE TO BE SUBMITTED TO THE TEXAS REGISTER.
Estimated date of publication in the Texas Register: February 9, 2007
The rules will take effect: February 12, 2007
The Texas Workforce Commission (Commission) adopts amendments, without changes, to the
following section of Chapter 819 relating to the Texas Workforce Commission Civil Rights
Division, as published in the November 17, 2006, issue of the Texas Register (31 TexReg 9448):
Subchapter F, Equal Employment Opportunity Records and Recordkeeping, §819.92
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
The purpose of the rule amendment is to clarify in rule the Commission’s determination of what
materials are available to the parties in a civil rights matter and what materials are beyond what
would constitute reasonable access to the file. The Commission’s authority for determining the
scope of reasonable disclosure of documents is set forth in §21.305, Texas Labor Code,
regarding Access to Commission records.
Specifically §21.305 provides that “the commission shall adopt rules allowing a party to a
complaint filed under Section 21.201 reasonable access to commission records relating to the
complaint.” Furthermore it provides that, “unless the complaint is resolved through a voluntary
settlement or conciliation, on the written request of a party the executive director shall allow the
party access to the commission records: (1) after the final action of the commission; or (2) if a
civil action relating to the complaint is filed in federal court alleging a violation of federal law.”
The rule defines reasonable access to include access to all records in the file, except those
excepted from required disclosure under the Public Information Act and investigator notes. The
purpose of the change in the rule is to make clear the intent of the Commission, under the
authority of 21.305, Texas Labor Code, to exclude investigator notes from the materials in a civil
rights matter that may be accessed. By so doing, the Commission is striving to ensure that
investigators have the broadest latitude to thoroughly investigate and record their findings, while
continuing to ensure that the parties have access to all other parts of the file. This proposal
additionally aligns Commission practices with the Equal Employment Opportunity
Commission’s (EEOC) policies regarding release of records in employment discrimination
complaints as reflected in the Memorandum of Understanding with EEOC.
2
Pursuant to §21.305, the Commission has determined what constitutes reasonable access to files.
Claimants or respondents to a Civil Rights Division (CRD) investigation often request copies of
the complete complaint file including the investigator’s personal notes. Generally, while an
individual is authorized to have access to copies of the contents in his or her CRD complaint file,
the reasonable access does not include documents in the file that may be deemed confidential
under the Public Information Act or an investigator’s personal notes.
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS
SUBCHAPTER F. EQUAL EMPLOYMENT OPPORTUNITY RECORDS AND
RECORDKEEPING
The Commission adopts the following amendments to Subchapter F:
§819.92. Access to CRD Records
Section 819.92(b) is added to provide that pursuant to the authority granted the Commission in
Texas Labor Code §21.305, reasonable access does not include: (1) information excepted from
required disclosure under Texas Government Code, Chapter 552; or (2) investigator notes.
The new subsection provides that parties involved in an allegation filed with CRD may obtain
copies of all items in the file relating to their claim but that reasonable access does not include
documents in the file that may be deemed confidential under the Public Information Act or
investigator notes, which will allow for more complete investigations and is consistent with the
Commission’s Memorandum of Understanding with EEOC.
No comments were received.
The Agency hereby certifies that the proposal has been reviewed by legal counsel and found to
be within the Agency’s legal authority to adopt.
The rules are adopted under Texas Labor Code §301.0015 and §302.002(d), which provide the
Texas Workforce Commission with the authority to adopt, amend, or repeal such rules as it
deems necessary for the effective administration of Agency services and activities. The rules are
also proposed under Texas Labor Code §21.305, which provides the Commission with the
authority to adopt rules allowing a party to a complaint filed under Section 21.201 reasonable
access to Commission records relating to the complaint.
The rules affect Texas Government Code, Chapter 552.
3
CHAPTER 819. TEXAS WORKFORCE COMMISSION CIVIL RIGHTS
DIVISION
SUBCHAPTER F. EQUAL EMPLOYMENT OPPORTUNITY RECORDS AND
RECORDKEEPING
§819.92. Access to CRD Records
(a) Pursuant to Texas Labor Code §21.304 and §21.305, CRD shall, on written request of a
party to a perfected complaint filed under Texas Labor Code §21.201, allow the party
access to CRD’s records, unless the perfected complaint has been resolved through a
voluntary settlement or conciliation agreement:
(1) following the final action of CRD; or
(2) if a party to the perfected complaint or the party’s attorney certifies in writing that a
civil action relating to the perfected complaint is pending in federal court alleging a
violation of federal law.
(b) Pursuant to the authority granted the Commission in Texas Labor Code §21.305,
reasonable access shall not include access to the following:
(1) information excepted from required disclosure under Texas Government Code,
Chapter 552; or
(2) investigator notes.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
WITHDRAWAL OF WAGE CLAIM
TEXAS WORKFORCE COMMISSION
REGULATORY INTEGRITY DIVISION
101 EAST 15TH STREET, RM 556
AUSTIN, TEXAS 78778-0001
The Texas Workforce Commission does not process any contractual settlements between parties regarding wage claims. If the parties reach an outside settlement, the claimant may withdraw their wage claim.
After the Texas Workforce Commission commences collection actions, only a Withdrawal of Wage Claim will be accepted that must contain the claimant’s name and claim number. (No photocopy or facsimile copies will be accepted.) To expedite withdrawal the claimant should complete and submit this form to the Texas Workforce Commission at the address shown below.
Mail original to: Texas Workforce Commission, Regulatory Integrity Division, Labor Law Collections Unit,
101 E. 15th Street, Room 556, Austin, Texas, 78778-0001.
I UNDERSTAND THAT THIS IS A WITHDRAWAL OF WAGE CLAIM NO. . I UNDERSTAND THAT THE TEXAS WORKFORCE COMMISSION (TWC) WILL TAKE NO FURTHER ACTION ON MY CLAIM UPON RECEIPT OF THE WITHDRAWAL AND TWC WILL NEITHER RECOGNIZE NOR ENFORCE ANY ORDERS ISSUED, AND TWC WILL RELEASE ANY LIENS OR FREEZES IN EFFECT AGAINST THE EMPLOYER PERTAINING TO THE ABOVE REFERENCED CLAIM NUMBER.
UNSWORN DECLARATION
(CIVIL PRACTICE AND REMEDIES CODE, CHAPTER 132)
My name is ______ ______ ;
(First) (Middle) (Last)
my date of birth is ;
and my address is , , , ,
(Street) (City) (State) (Zip Code)
.
(Country)
I declare under penalty of perjury that the foregoing is true and correct.
Executed in County, State of , on the day of _ , .
(Month) (Year)
(Signature)
LL-119 (0213)
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Texas Child Labor Law — Texas Workforce Commission
A child age 16 or 17 has no restrictions on the number of hours or times of day they may work. There are hour restrictions only for children ages 14 and 15, with separate state and federal laws that cover their work hours. All businesses are subject to state law but only those businesses covered by the Fair Labor Standards Act (FLSA) are subject to the federal law.
Texas State Law
State law states that 14 and 15 year olds:
Can work no more than 8 hours in one day.
Can work no more than 48 hours in one week.
Cannot go to work before 5 a.m.
Cannot work after 10 p.m. on a day that is followed by a school day, including summer school sessions when applicable.
Cannot work past midnight on a day that is not followed by a school day.
Federal Law
FLSA states that 14 and 15 year olds:
May not work during school hours.
Can work no more than 8 hours in a day or 40 hours in a week when school is not in session.
Can work no more than 3 hours in a day or 18 hours in a week when school is in session.
Can work only between 7 a.m. and 7 p.m. during the school year. However, between June 1 and Labor Day, they may work between the hours of 7 a.m. and 9 p.m.
Hardship Exemption
To request that TWC approve a hardship waiver of the hour restrictions for a child age 14 or 15 because it is necessary for the child to work to support themselves or their immediate family, follow the process described in Commission Rule Section §817.22.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Enclosed is the response to your request for an opinion letter signed by the then Acting Wage and Hour Administrator Alexander J. Passantino on January 16, 2009. It does not appear that this response was placed in the mail for delivery to you after it was signed. In any event, we have decided to withdraw it for further consideration by the Wage and Hour Division. We will provide a further response in the near future.
The enclosed opinion letter, and this withdrawal, are issued as official rulings of the Wage and Hour Division for purposes of the Portal-to-Portal Act, 29 U.S.C. § 259. See 29 C.F.R. §§ 790.17(d), 790.19; Hultgren v. County of Lancaster, Nebraska, 913 F.2d 498, 507 (8th Cir. 1990). Our letter to you dated January 16, 2009 is withdrawn and may not be relied upon as a statement of agency policy. Please note that Wage and Hour Opinion Letter FLSA2009-29 (Jan. 16, 2009), a copy of which was attached to our letter to you, has also been withdrawn.
Sincerely,
John L. McKeon
Deputy Administrator for Enforcement
FLSA2009-36
This Opinion Letter is withdrawn.
January 16, 2009
Dear Name*:
This is in response to your request for an opinion regarding whether employees of homebuilders who supervise construction of multiple new homes, townhomes, and/or condominiums each year qualify for an exemption under section 13(a)(1) of the Fair Labor Standards Act (FLSA).* We believe the attached opinion letter recently issued by the United States Department of Labor Wage and Hour Division adequately responds to your inquiry.
Sincerely,
Alexander J. Passantino
Acting Administrator
* Note: The actual name(s) was removed to preserve privacy in accordance with 5 U.S.C. § 552(b)(7).
FLSA2009-29
This Opinion Letter is withdrawn.
January 16, 2009
Dear Name*:
This is in response to your request for an opinion regarding whether a project supervisor in the residential homebuilding industry qualifies for an exemption under section 13(a)(1) of the Fair Labor Standards Act (FLSA).* You ask specifically whether the project supervisor qualifies as an employee employed in a bona fide administrative capacity. It is our opinion that the position is exempt from the minimum wage and overtime requirements of the FLSA.
You indicate that project supervisors are employed by homebuilding companies to supervise and coordinate the construction of residential homes. Often the homebuilding company will outsource the actual construction of the home to various subcontractors, and the project supervisor will serve as the company’s representative at the worksite in dealings with subcontractors, suppliers, customers, and government inspectors. A project supervisor spends more than half of his/her time directing, scheduling, managing, and paying subcontractors and suppliers. Additionally, the project supervisor reviews and modifies new home plans; interacts with building inspectors; ensures each home is ready for each required inspection; responds to customer concerns and complaints; reviews the initial home construction budget to ensure the estimates are reasonable; inspects the work of subcontractors and suppliers; tracks the home costs against original estimates as construction progresses; acts as the company safety inspector at the worksite; works with subcontractors to ensure compliance with all federal and state safety procedures and regulations; and takes appropriate and necessary action if an accident occurs.
Section 13(a)(1) of the FLSA exempts from its minimum wage and overtime pay provisions “any employee employed in a bona fide executive, administrative, or professional capacity.” 29 U.S.C. § 213(a)(1). The exemption is determined not by occupational title or job classification, but rather by the duties and salary of the individual employee involved. See 29 C.F.R. § 541.2.
The term “employee employed in a bona fide administrative capacity” in section 13(a)(1) of the FLSA includes “any employee:”
(1) Compensated on a salary or fee basis at a rate of not less than $455 per week . . . exclusive of board, lodging, or other facilities;
(2) Whose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and
(3) Whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.
29 C.F.R. § 541.200.
Regarding the first requirement that the project supervisor is compensated on a salary or fee basis at a rate of not less than $455 per week, exclusive of board, lodging, or other facilities, you request that we assume the project supervisor meets this requirement and is paid accordingly. Therefore, we focus on whether the position also meets the primary duty test in determining whether the project supervisor qualifies for the administrative exemption. To satisfy the primary duty test, the project supervisor’s primary duty must include both the performance of office or non-manual work directly related to the management or general business operations of the employer and the exercise of discretion and independent judgment with respect to matters of significance.
As stated in 29 C.F.R. § 541.201(a):
To qualify for the administrative exemption, an employee’s primary duty must be the performance of [office or non-manual] work directly related to the management or general business operations of the employer or the employer’s customers . . . To meet this requirement, an employee must perform work directly related to assisting with the running or servicing of the business, as distinguished, for example, from working on a manufacturing production line or selling a product in a retail or service establishment.
Additionally, as stated in 29 C.F.R. § 541.201(b):
Work directly related to management or general business operations includes, but is not limited to, work in functional areas such as tax; finance; accounting; budgeting; auditing; insurance; quality control; purchasing; procurement; advertising; marketing; research; safety and health; personnel management; human resources; employee benefits; labor relations; public relations; government relations; computer network; internet and database administration; legal and regulatory compliance; and similar activities.
We recently issued an opinion, Wage and Hour Opinion Letter January 16, 2009, in which we concluded that project superintendents employed by a commercial construction company qualify as exempt administrative employees because their primary duties appeared “to relate directly to the management or general business operation of [the employer], i.e., they are responsible for overseeing a commercial construction project from start to finish.” (citing 29 C.F.R. § 541.201(a)-(c)). As we explained in Wage and Hour Opinion Letter January 16, 2009, recent decisions in the federal courts demonstrate that the application of these requirements is highly fact specific. See Gottlieb v. Construction Servs. & Consultants, Inc., No. 05-14139, 2006 WL 5503644, at *6-7 (S.D. Fla. July 24, 2006) (project superintendents whose primary duty “involved producing the product their company existed to market” rather than servicing the company itself, and where “all ‘matters of significance’ were determined by [the project supervisor’s] superiors” were not exempt administrators).
In Gottlieb, the project superintendent did not qualify for the administrative exemption because, in part, his duties were primarily to inspect the work of subcontractors to ensure compliance with the builder’s plans to schedule the subcontractors and supplies to ensure they were both in place at the proper time. See 2006 WL 5503644, at *6; 29 C.F.R. § 541.203(g) (“[o]rdinary inspection work generally does not meet the duties requirements for the administrative exemption”); 29 C.F.R. § 541.202(e) (“the exercise of discretion and independent judgment must be more than the use of skill in applying well-established techniques, procedures, or specific standards described in manuals or other sources”). The fact that the project superintendent’s work was important to the company, affecting its profitability and reputation, was not dispositive. See Gottlieb, 2006 WL 5503644, at *6 (citing Sack v. Miami Helicopter Svc., Inc., 986 F. Supp. 1456, 1469 (S.D. Fla. 1997)); 29 C.F.R. § 541.202(f).
From your letter describing the project supervisor’s duties, it appears that an overwhelming majority of his/her work is non-manual work directly related to the management or general business operations of the employer, a homebuilding company, and includes tasks such as budgeting, auditing, quality control, purchasing, procurement, safety and health, personnel management, human resources, labor relations, public relations, government relations, legal and regulatory compliance, and similar activities.
To begin, the actual manual work of constructing the home is outsourced to subcontractors and suppliers. As previously stated, the project supervisor supervises and coordinates the construction of the home and serves as the homebuilding company’s representative at the work-site in dealings with subcontractors, suppliers, customers, and government inspectors.
In your letter, you indicate that the project supervisor spends more than half of his/her time directing, managing, scheduling, and paying subcontractors and suppliers. In discharging these duties, the project supervisor evaluates the quality and efficiency of the subcontractors’ and suppliers’ work, is authorized to stop their work to correct any observed deficiencies, and may require them to remove any of their employees from the worksite. If necessary, the project supervisor may recommend the dismissal of subcontractors and suppliers whose work is not satisfactory. When a particular subcontractor’s contract is up for renewal, the project supervisor provides significant input as to who will be re-contracted for future services.
Additionally, the project supervisor reviews and modifies new home plans, making sure there are no conflicts between the plans and the actual construction of the home. The project supervisor ensures that each home meets all safety, quality, and legal requirements; ensures each home is ready for inspection; and negotiates the best solution for any issue that may arise with a building inspector, subcontractor, or supplier. Also, the project supervisor schedules the subcontractors and suppliers and commits the homebuilding company to pay when appropriate.
Furthermore, the project supervisor serves as each homebuyer’s primary contact in dealing with the construction of the home and also meeting with prospective customers to explain the construction process. The project supervisor reviews the initial home construction budget to ensure the estimates are reasonable and tracks the construction costs against the original estimates once construction begins. Finally, the project supervisor is not typically subject to any on-site supervisors by any other company employee. It appears that, like the project superintendents in Wage and Hour Opinion Letter January 16, 2009, the project supervisors oversee the commercial construction project from start to finish, using a similar amount of discretion and independent judgment when carrying out their duties. The exercise of discretion and independent judgment implies that the project supervisors make independent choices concerning matters of significance, such as whether to depart from prescribed standards or permitted tolerances. See 29 C.F.R. § 541.202(a)-(c). Unlike in Gottlieb, the primary duties of the project supervisors seem to be more involved than just inspecting work to ensure compliance with the builders’ plans and scheduling subcontractors and supplies. Therefore, it appears the project supervisor’s primary duties meet the requirement of being office or non-manual work directly related to the management or general business operations of the employer as stated in 29 C.F.R. § 541.200(a)(2) and further described in 29 C.F.R § 541.201.
As stated in 29 C.F.R. §541.202(a):
To qualify for the administrative exemption, an employee’s primary duty must include the exercise of discretion and independent judgment with respect to matters of significance. In general the exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered. The term “matters of significance” refers to the level of importance or consequence of the work performed.
Additionally, as stated in 29 C.F.R. § 541.202(b):
Factors to consider when determining whether an employee exercises discretion and independent judgment with respect to matters of significance include, but are not limited to: whether the employee has authority to formulate, affect, interpret, or implement management policies or operating practices; whether the employee carries out major assignments in conducting the operations of the business; whether the employee performs work that affects business operations to a substantial degree, even if the employee’s assignments are related to operation of a particular segment of the business; whether the employee has authority to commit the employer in matters that have significant financial impact; whether the employee has authority to waive or deviate from established policies and procedures without prior approval; whether the employee has authority to negotiate and bind the company on significant matters; whether the employee provides consultation or expert advice to management; whether the employee is involved in planning long- or short-term business objectives; whether the employee investigates and resolves matters of significance on behalf of management; and whether the employee represents the company in handling complaints, arbitrating disputes or resolving grievances.
“The exercise of discretion and independent judgment implies that the employee has authority to make an independent choice, free from immediate direction or supervision. However, employees can exercise discretion and independent judgment even if their decisions or recommendations are reviewed at a higher level.” 29 C.F.R. § 541.202(c).
It appears the project supervisor’s primary duties involve the exercise of discretion and independent judgment with respect to matters of significance. For example, in your letter, you indicate that the project supervisor has significant authority to adjust the construction process as necessary when, in his/her opinion, such a change is needed to meet any safety, quality, or legal requirements, or to ensure a high quality home is provided within the estimated budget, and to commit the homebuilding company to any payments that are required to complete such an alteration; to negotiate solutions to issues raised by the building inspector, subcontractors, or suppliers; to schedule subcontractors or suppliers; to stop their work when it is unsatisfactory; to order the removal of their employees when necessary; to recommend the dismissal of a subcontractor or supplier if appropriate; to commit the homebuilding company to any payments to subcontractors or suppliers for any work or building materials provided; and to stop payment to any subcontractor or supplier when appropriate. Additionally, as previously stated the project supervisor serves as the homebuilding company’s sole representative at the worksite and must deal with any issues, concerns, unforeseen events, or problems that may arise during the entire homebuilding process. Thus, the project supervisor has the authority to formulate, affect, interpret, and implement management policies and operating practices; carry out major assignments in conducting the operations of the homebuilding company; perform work that affects business operations to a substantial degree; commit the employer in matters that have significant financial impact; waive or deviate from established policies and procedures without prior approval; negotiate and bind the company on significant matters; and investigate and resolve matters of significance on behalf of the company. Therefore, it appears the project supervisor’s primary duties meet the requirement of including the exercise of discretion and independent judgment with respect to matters of significance as stated in 29 C.F.R. § 541.200(a)(3) and further described in 29 C.F.R § 541.202.
It is our opinion that the project supervisor position is exempt from the FLSA’s minimum wage and overtime requirements as an employee employed in a bona fide administrative capacity, provided that the salary basis requirement is met.
This opinion is based exclusively on the facts and circumstances described in your request and is given based on your representation, express or implied, that you have provided a full and fair description of all the facts and circumstances that would be pertinent to our consideration of the question presented. Existence of any other factual or historical background not contained in your letter might require a conclusion different from the one expressed herein. You have represented that this opinion is not sought by a party to pending private litigation concerning the issue addressed herein. You have also represented that this opinion is not sought in connection with an investigation or litigation between a client or firm and the Wage and Hour Division or the Department of Labor.
We trust that this letter is responsive to your inquiry.
Sincerely,
Alexander J. Passantino
Acting Administrator
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Multiple Employment Employee.[Cross-reference: Multi employment AWW dispute (W06); Entitlement to multi employer benefits (I25)]. For employees injured on or after July 1, 2002, when an IW is employed by more than one employer on the DOI, the IC shall calculate the AWW for that IW using the wages from all of the employers. For this purpose, the IW is required to submit a Multiple Employment Wage Statement to the IC. Section 128.1(h).
Claim Employers.The claim employer is the employer with whom the IW filed a claim for workers’ compensation benefits, and for whom the IW was working at the time of the injury. Section 122.5(a)(1). The portion of the AWW based on employment with the claim employer shall be calculated according to how the IW’s AWW would be determined if the IW did not have multiple employment. Section 128.1(h)(1).
Non-Claim Employers. A non-claim employer is any employer other than the claim employer, who the IW was employed by on the DOI. Section 122.5(a)(2). An IW who was employed by a non-claim employer, in addition to the claim employer, at the time of the injury is allowed an adjustment in income benefits based on this employment.
The portion of the IW’s AWW that is based on employment with a non-claim employer shall be calculated by adding together the wages paid to the IW during the 13 weeks immediately preceding the injury and dividing that result by 13. If the IW has not worked for 13 weeks or more prior to the DOI, the wages used to determine AWW are those paid by the employer to a similar employee who performs similar services and earned wages during the previous 13 weeks. If there is no similar employee at the employer’s business, the AWW is determined using the wages earned by a similar employee who performed similar services in the same vicinity. The wages paid to that person during the 13 weeks prior to the DOI are added together and divided by 13. Section 128.1(h)(2). Wages used to determine AWW from a non-claim employer shall include only those wages reported for federal income tax purposes. Section 408.042(e); Section 128.1(h)(2). The IW must have earned income from the non-claim employer during the 13 weeks prior to the DOI or there can be no adjustment to the AWW for multiple employment. APD 030164-s. The IW has the burden to establish the wages earned from the non-claim employer. APD 052864-s.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
(1) “Club” means an instrument that is specially designed, made, or adapted for the purpose of inflicting serious bodily injury or death by striking a person with the instrument, and includes but is not limited to the following:
(A) blackjack;
(B) nightstick;
(C) mace;
(D) tomahawk.
(2) “Explosive weapon” means any explosive or incendiary bomb, grenade, rocket, or mine, that is designed, made, or adapted for the purpose of inflicting serious bodily injury, death, or substantial property damage, or for the principal purpose of causing such a loud report as to cause undue public alarm or terror, and includes a device designed, made, or adapted for delivery or shooting an explosive weapon.
(3) “Firearm” means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. Firearm does not include a firearm that may have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by this chapter and that is:
(A) an antique or curio firearm manufactured before 1899; or
(B) a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition.
(4) “Firearm silencer” means any device designed, made, or adapted to muffle the report of a firearm.
(5) “Handgun” means any firearm that is designed, made, or adapted to be fired with one hand.
(6) “Illegal knife” means a:
(A) knife with a blade over five and one-half inches;
(B) hand instrument designed to cut or stab another by being thrown;
(C) dagger, including but not limited to a dirk, stiletto, and poniard;
(D) bowie knife;
(E) sword; or
(F) spear.
(7) “Knife” means any bladed hand instrument that is capable of inflicting serious bodily injury or death by cutting or stabbing a person with the instrument.
(8) “Knuckles” means any instrument that consists of finger rings or guards made of a hard substance and that is designed, made, or adapted for the purpose of inflicting serious bodily injury or death by striking a person with a fist enclosed in the knuckles.
(9) “Machine gun” means any firearm that is capable of shooting more than two shots automatically, without manual reloading, by a single function of the trigger.
(10) “Short-barrel firearm” means a rifle with a barrel length of less than 16 inches or a shotgun with a barrel length of less than 18 inches, or any weapon made from a shotgun or rifle if, as altered, it has an overall length of less than 26 inches.
(11) “Switchblade knife” means any knife that has a blade that folds, closes, or retracts into the handle or sheath and that opens automatically by pressure applied to a button or other device located on the handle or opens or releases a blade from the handle or sheath by the force of gravity or by the application of centrifugal force. The term does not include a knife that has a spring, detent, or other mechanism designed to create a bias toward closure and that requires exertion applied to the blade by hand, wrist, or arm to overcome the bias toward closure and open the knife.
(12) “Armor-piercing ammunition” means handgun ammunition that is designed primarily for the purpose of penetrating metal or body armor and to be used principally in pistols and revolvers.
(13) “Hoax bomb” means a device that:
(A) reasonably appears to be an explosive or incendiary device; or
(B) by its design causes alarm or reaction of any type by an official of a public safety agency or a volunteer agency organized to deal with emergencies.
(14) “Chemical dispensing device” means a device, other than a small chemical dispenser sold commercially for personal protection, that is designed, made, or adapted for the purpose of dispensing a substance capable of causing an adverse psychological or physiological effect on a human being.
(15) “Racetrack” has the meaning assigned that term by the Texas Racing Act (Article 179e, Vernon’s Texas Civil Statutes).
(16) “Zip gun” means a device or combination of devices that was not originally a firearm and is adapted to expel a projectile through a smooth-bore or rifled-bore barrel by using the energy generated by an explosion or burning substance.
Sec. 46.02. UNLAWFUL CARRYING WEAPONS.
(a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:
(1) on the person’s own premises or premises under the person’s control; or
(2) inside of or directly en route to a motor vehicle that is owned by the person or under the person’s control.
(a-1) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle that is owned by the person or under the person’s control at any time in which:
(1) the handgun is in plain view; or
(2) the person is:
(A) engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic;
(B) prohibited by law from possessing a firearm; or
(C) a member of a criminal street gang, as defined by Section 71.01.
(a-2) For purposes of this section, “premises” includes real property and a recreational vehicle that is being used as living quarters, regardless of whether that use is temporary or permanent. In this subsection, “recreational vehicle” means a motor vehicle primarily designed as temporary living quarters or a vehicle that contains temporary living quarters and is designed to be towed by a motor vehicle. The term includes a travel trailer, camping trailer, truck camper, motor home, and horse trailer with living quarters.
(b) Except as provided by Subsection (c), an offense under this section is a Class A misdemeanor.
(c) An offense under this section is a felony of the third degree if the offense is committed on any premises licensed or issued a permit by this state for the sale of alcoholic beverages.
Sec. 46.03. PLACES WEAPONS PROHIBITED.
(a) A person commits an offense if the person intentionally, knowingly, or recklessly possesses or goes with a firearm, illegal knife, club, or prohibited weapon listed in Section 46.05(a):
(1) on the physical premises of a school or educational institution, any grounds or building on which an activity sponsored by a school or educational institution is being conducted, or a passenger transportation vehicle of a school or educational institution, whether the school or educational institution is public or private, unless pursuant to written regulations or written authorization of the institution;
(2) on the premises of a polling place on the day of an election or while early voting is in progress;
(3) on the premises of any government court or offices utilized by the court, unless pursuant to written regulations or written authorization of the court;
(4) on the premises of a racetrack;
(5) in or into a secured area of an airport; or
(6) within 1,000 feet of premises the location of which is designated by the Texas Department of Criminal Justice as a place of execution under Article 43.19, Code of Criminal Procedure, on a day that a sentence of death is set to be imposed on the designated premises and the person received notice that:
(A) going within 1,000 feet of the premises with a weapon listed under this subsection was prohibited; or
(B) possessing a weapon listed under this subsection within 1,000 feet of the premises was prohibited.
(b) It is a defense to prosecution under Subsections (a)(1)-(4) that the actor possessed a firearm while in the actual discharge of his official duties as a member of the armed forces or national guard or a guard employed by a penal institution, or an officer of the court.
(c) In this section:
(1) “Premises” has the meaning assigned by Section 46.035.
(2) “Secured area” means an area of an airport terminal building to which access is controlled by the inspection of persons and property under federal law.
(d) It is a defense to prosecution under Subsection (a)(5) that the actor possessed a firearm or club while traveling to or from the actor’s place of assignment or in the actual discharge of duties as:
(1) a member of the armed forces or national guard;
(2) a guard employed by a penal institution; or
(3) a security officer commissioned by the Texas Private Security Board if:
(A) the actor is wearing a distinctive uniform; and
(B) the firearm or club is in plain view; or
(4) a security officer who holds a personal protection authorization under Chapter 1702, Occupations Code, provided that the officer is either:
(A) wearing the uniform of a security officer, including any uniform or apparel described by Section 1702.323(d), Occupations Code, and carrying the officer’s firearm in plain view; or
(B) not wearing the uniform of a security officer and carrying the officer’s firearm in a concealed manner.
(e) It is a defense to prosecution under Subsection (a)(5) that the actor checked all firearms as baggage in accordance with federal or state law or regulations before entering a secured area.
(f) It is not a defense to prosecution under this section that the actor possessed a handgun and was licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code.
(g) An offense under this section is a third degree felony.
(h) It is a defense to prosecution under Subsection (a)(4) that the actor possessed a firearm or club while traveling to or from the actor’s place of assignment or in the actual discharge of duties as a security officer commissioned by the Texas Board of Private Investigators and Private Security Agencies, if:
(1) the actor is wearing a distinctive uniform; and
(2) the firearm or club is in plain view.
(i) It is an exception to the application of Subsection (a)(6) that the actor possessed a firearm or club:
(1) while in a vehicle being driven on a public road; or
(2) at the actor’s residence or place of employment.
Sec. 46.04. UNLAWFUL POSSESSION OF FIREARM.
(a) A person who has been convicted of a felony commits an offense if he possesses a firearm:
(1) after conviction and before the fifth anniversary of the person’s release from confinement following conviction of the felony or the person’s release from supervision under community supervision, parole, or mandatory supervision, whichever date is later; or
(2) after the period described by Subdivision (1), at any location other than the premises at which the person lives.
(b) A person who has been convicted of an offense under Section 22.01, punishable as a Class A misdemeanor and involving a member of the person’s family or household, commits an offense if the person possesses a firearm before the fifth anniversary of the later of:
(1) the date of the person’s release from confinement following conviction of the misdemeanor; or
(2) the date of the person’s release from community supervision following conviction of the misdemeanor.
(c) A person, other than a peace officer, as defined by Section 1.07, actively engaged in employment as a sworn, full-time paid employee of a state agency or political subdivision, who is subject to an order issued under Section 6.504 or Chapter 85, Family Code, under Article 17.292 or Chapter 7A, Code of Criminal Procedure, or by another jurisdiction as provided by Chapter 88, Family Code, commits an offense if the person possesses a firearm after receiving notice of the order and before expiration of the order.
(d) In this section, “family,” “household,” and “member of a household” have the meanings assigned by Chapter 71, Family Code.
(e) An offense under Subsection (a) is a felony of the third degree. An offense under Subsection (b) or (c) is a Class A misdemeanor.
(f) For the purposes of this section, an offense under the laws of this state, another state, or the United States is, except as provided by Subsection (g), a felony if, at the time it is committed, the offense:
(1) is designated by a law of this state as a felony;
(2) contains all the elements of an offense designated by a law of this state as a felony; or
(3) is punishable by confinement for one year or more in a penitentiary.
(g) An offense is not considered a felony for purposes of Subsection (f) if, at the time the person possesses a firearm, the offense:
(1) is not designated by a law of this state as a felony; and
(2) does not contain all the elements of any offense designated by a law of this state as a felony.
Sec. 46.041. UNLAWFUL POSSESSION OF METAL OR BODY ARMOR BY FELON.
(a) In this section, “metal or body armor” means any body covering manifestly designed, made, or adapted for the purpose of protecting a person against gunfire.
(b) A person who has been convicted of a felony commits an offense if after the conviction the person possesses metal or body armor.
(c) An offense under this section is a felony of the third degree.
Sec. 46.05. PROHIBITED WEAPONS.
(a) A person commits an offense if he intentionally or knowingly possesses, manufactures, transports, repairs, or sells:
(1) an explosive weapon;
(2) a machine gun;
(3) a short-barrel firearm;
(4) a firearm silencer;
(5) a switchblade knife;
(6) knuckles;
(7) armor-piercing ammunition;
(8) a chemical dispensing device; or
(9) a zip gun.
(b) It is a defense to prosecution under this section that the actor’s conduct was incidental to the performance of official duty by the armed forces or national guard, a governmental law enforcement agency, or a correctional facility.
(c) It is a defense to prosecution under this section that the actor’s possession was pursuant to registration pursuant to the National Firearms Act, as amended.
(d) It is an affirmative defense to prosecution under this section that the actor’s conduct:
(1) was incidental to dealing with a switchblade knife, springblade knife, or short-barrel firearm solely as an antique or curio; or
(2) was incidental to dealing with armor-piercing ammunition solely for the purpose of making the ammunition available to an organization, agency, or institution listed in Subsection (b).
(e) An offense under this section is a felony of the third degree unless it is committed under Subsection (a)(5) or (a)(6), in which event, it is a Class A misdemeanor.
(f) It is a defense to prosecution under this section for the possession of a chemical dispensing device that the actor is a security officer and has received training on the use of the chemical dispensing device by a training program that is:
(1) provided by the Commission on Law Enforcement Officer Standards and Education; or
(2) approved for the purposes described by this subsection by the Texas Private Security Board of the Department of Public Safety.
(g) In Subsection (f), “security officer” means a commissioned security officer as defined by Section 1702.002, Occupations Code, or a noncommissioned security officer registered under Section 1702.221, Occupations Code.
Sec. 46.06. UNLAWFUL TRANSFER OF CERTAIN WEAPONS
.
(a) A person commits an offense if the person:
(1) sells, rents, leases, loans, or gives a handgun to any person knowing that the person to whom the handgun is to be delivered intends to use it unlawfully or in the commission of an unlawful act;
(2) intentionally or knowingly sells, rents, leases, or gives or offers to sell, rent, lease, or give to any child younger than 18 years any firearm, club, or illegal knife;
(3) intentionally, knowingly, or recklessly sells a firearm or ammunition for a firearm to any person who is intoxicated;
(4) knowingly sells a firearm or ammunition for a firearm to any person who has been convicted of a felony before the fifth anniversary of the later of the following dates:
(A) the person’s release from confinement following conviction of the felony; or
(B) the person’s release from supervision under community supervision, parole, or mandatory supervision following conviction of the felony;
(5) sells, rents, leases, loans, or gives a handgun to any person knowing that an active protective order is directed to the person to whom the handgun is to be delivered; or
(6) knowingly purchases, rents, leases, or receives as a loan or gift from another a handgun while an active protective order is directed to the actor.
(b) In this section:
(1) “Intoxicated” means substantial impairment of mental or physical capacity resulting from introduction of any substance into the body.
(2) “Active protective order” means a protective order issued under Title 4, Family Code, that is in effect. The term does not include a temporary protective order issued before the court holds a hearing on the matter.
(c) It is an affirmative defense to prosecution under Subsection (a)(2) that the transfer was to a minor whose parent or the person having legal custody of the minor had given written permission for the sale or, if the transfer was other than a sale, the parent or person having legal custody had given effective consent.
(d) An offense under this section is a Class A misdemeanor, except that an offense under Subsection (a)(2) is a state jail felony if the weapon that is the subject of the offense is a handgun.
Sec. 46.07. INTERSTATE PURCHASE
.
A resident of this state may, if not otherwise precluded by law, purchase firearms, ammunition, reloading components, or firearm accessories in another state. This authorization is enacted in conformance with 18 U.S.C. Section 922(b)(3)(A).
Sec. 46.10. DEADLY WEAPON IN PENAL INSTITUTION
.
(a) A person commits an offense if, while confined in a penal institution, he intentionally, knowingly, or recklessly:
(1) carries on or about his person a deadly weapon; or
(2) possesses or conceals a deadly weapon in the penal institution
.
(b) It is an affirmative defense to prosecution under this section that at the time of the offense the actor was engaged in conduct authorized by an employee of the penal institution.
(c) A person who is subject to prosecution under both this section and another section under this chapter may be prosecuted under either section.
(d) An offense under this section is a felony of the third degree.
Sec. 46.11. PENALTY IF OFFENSE COMMITTED WITHIN WEAPON-FREE SCHOOL ZONE
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(a) Except as provided by Subsection (b), the punishment prescribed for an offense under this chapter is increased to the punishment prescribed for the next highest category of offense if it is shown beyond a reasonable doubt on the trial of the offense that the actor committed the offense in a place that the actor knew was:
(1) within 300 feet of the premises of a school; or
(2) on premises where:
(A) an official school function is taking place; or
(B) an event sponsored or sanctioned by the University Interscholastic League is taking place.
(b) This section does not apply to an offense under Section 46.03(a)(1).
(c) In this section:
(1) “Institution of higher education” and “premises” have the meanings assigned by Section 481.134, Health and Safety Code.
(2) “School” means a private or public elementary or secondary school.
Sec. 46.12. MAPS AS EVIDENCE OF LOCATION OR AREA
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(a) In a prosecution of an offense for which punishment is increased under Section 46.11, a map produced or reproduced by a municipal or county engineer for the purpose of showing the location and boundaries of weapon-free zones is admissible in evidence and is prima facie evidence of the location or boundaries of those areas if the governing body of the municipality or county adopts a resolution or ordinance approving the map as an official finding and record of the location or boundaries of those areas.
(b) A municipal or county engineer may, on request of the governing body of the municipality or county, revise a map that has been approved by the governing body of the municipality or county as provided by Subsection (a).
(c) A municipal or county engineer shall file the original or a copy of every approved or revised map approved as provided by Subsection (a) with the county clerk of each county in which the area is located.
(d) This section does not prevent the prosecution from:
(1) introducing or relying on any other evidence or testimony to establish any element of an offense for which punishment is increased under Section 46.11; or
(2) using or introducing any other map or diagram otherwise admissible under the Texas Rules of Evidence.
Sec. 46.13. MAKING A FIREARM ACCESSIBLE TO A CHILD
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(a) In this section:
(1) “Child” means a person younger than 17 years of age.
(2) “Readily dischargeable firearm” means a firearm that is loaded with ammunition, whether or not a round is in the chamber.
(3) “Secure” means to take steps that a reasonable person would take to prevent the access to a readily dischargeable firearm by a child, including but not limited to placing a firearm in a locked container or temporarily rendering the firearm inoperable by a trigger lock or other means.
(b) A person commits an offense if a child gains access to a readily dischargeable firearm and the person with criminal negligence:
(1) failed to secure the firearm; or
(2) left the firearm in a place to which the person knew or should have known the child would gain access.
(c) It is an affirmative defense to prosecution under this section that the child’s access to the firearm:
(1) was supervised by a person older than 18 years of age and was for hunting, sporting, or other lawful purposes;
(2) consisted of lawful defense by the child of people or property;
(3) was gained by entering property in violation of this code; or
(4) occurred during a time when the actor was engaged in an agricultural enterprise.
(d) Except as provided by Subsection (e), an offense under this section is a Class C misdemeanor.
(e) An offense under this section is a Class A misdemeanor if the child discharges the firearm and causes death or serious bodily injury to himself or another person.
(f) A peace officer or other person may not arrest the actor before the seventh day after the date on which the offense is committed if:
(1) the actor is a member of the family, as defined by Section 71.003, Family Code, of the child who discharged the firearm; and
(2) the child in discharging the firearm caused the death of or serious injury to the child.
(g) A dealer of firearms shall post in a conspicuous position on the premises where the dealer conducts business a sign that contains the following warning in block letters not less than one inch in height:
“IT IS UNLAWFUL TO STORE, TRANSPORT, OR ABANDON AN UNSECURED FIREARM IN A PLACE WHERE CHILDREN ARE LIKELY TO BE AND CAN OBTAIN ACCESS TO THE FIREARM.”
Sec. 46.14. FIREARM SMUGGLING
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(a) A person commits an offense if the person knowingly engages in the business of transporting or transferring a firearm that the person knows was acquired in violation of the laws of any state or of the United States. For purposes of this subsection, a person is considered to engage in the business of transporting or transferring a firearm if the person engages in that conduct:
(1) on more than one occasion; or
(2) for profit or any other form of remuneration.
(b) An offense under this section is a felony of the third degree, unless it is shown on the trial of the offense that the offense was committed with respect to three or more firearms in a single criminal episode, in which event the offense is a felony of the second degree.
(c) This section does not apply to a peace officer who is engaged in the actual discharge of an official duty.
(d) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section, the other law, or both.
Sec. 46.15. NONAPPLICABILITY.
(a) Sections 46.02 and 46.03 do not apply to:
(1) peace officers or special investigators under Article 2.122, Code of Criminal Procedure, and neither section prohibits a peace officer or special investigator from carrying a weapon in this state, including in an establishment in this state serving the public, regardless of whether the peace officer or special investigator is engaged in the actual discharge of the officer’s or investigator’s duties while carrying the weapon;
(2) parole officers and neither section prohibits an officer from carrying a weapon in this state if the officer is:
(A) engaged in the actual discharge of the officer’s duties while carrying the weapon; and
(B) in compliance with policies and procedures adopted by the Texas Department of Criminal Justice regarding the possession of a weapon by an officer while on duty;
(3) community supervision and corrections department officers appointed or employed under Section 76.004, Government Code, and neither section prohibits an officer from carrying a weapon in this state if the officer is:
(A) engaged in the actual discharge of the officer’s duties while carrying the weapon; and
(B) authorized to carry a weapon under Section 76.0051, Government Code;
(4) a judge or justice of a federal court, the supreme court, the court of criminal appeals, a court of appeals, a district court, a criminal district court, a constitutional county court, a statutory county court, a justice court, or a municipal court who is licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code;
(5) an honorably retired peace officer or federal criminal investigator who holds a certificate of proficiency issued under Section 1701.357, Occupations Code, and is carrying a photo identification that:
(A) verifies that the officer honorably retired after not less than 15 years of service as a commissioned officer; and
(B) is issued by a state or local law enforcement agency;
(6) a district attorney, criminal district attorney, county attorney, or municipal attorney who is licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code;
(7) an assistant district attorney, assistant criminal district attorney, or assistant county attorney who is licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code;
(8) a bailiff designated by an active judicial officer as defined by Section 411.201, Government Code, who is:
(A) licensed to carry a concealed handgun under Chapter 411, Government Code; and
(B) engaged in escorting the judicial officer; or
(9) a juvenile probation officer who is authorized to carry a firearm under Section 142.006, Human Resources Code.
(b) Section 46.02 does not apply to a person who:
(1) is in the actual discharge of official duties as a member of the armed forces or state military forces as defined by Section 431.001, Government Code, or as a guard employed by a penal institution;
(2) is traveling;
(3) is engaging in lawful hunting, fishing, or other sporting activity on the immediate premises where the activity is conducted, or is en route between the premises and the actor’s residence or motor vehicle, if the weapon is a type commonly used in the activity;
(4) holds a security officer commission issued by the Texas Private Security Board, if the person is engaged in the performance of the person’s duties as an officer commissioned under Chapter 1702, Occupations Code, or is traveling to or from the person’s place of assignment and is wearing the officer’s uniform and carrying the officer’s weapon in plain view;
(5) acts as a personal protection officer and carries the person’s security officer commission and personal protection officer authorization, if the person:
(A) is engaged in the performance of the person’s duties as a personal protection officer under Chapter 1702, Occupations Code, or is traveling to or from the person’s place of assignment; and
(B) is either:
(i) wearing the uniform of a security officer, including any uniform or apparel described by Section 1702.323(d), Occupations Code, and carrying the officer’s weapon in plain view; or
(ii) not wearing the uniform of a security officer and carrying the officer’s weapon in a concealed manner;
(6) is carrying a concealed handgun and a valid license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun of the same category as the handgun the person is carrying;
(7) holds an alcoholic beverage permit or license or is an employee of a holder of an alcoholic beverage permit or license if the person is supervising the operation of the permitted or licensed premises; or
(8) is a student in a law enforcement class engaging in an activity required as part of the class, if the weapon is a type commonly used in the activity and the person is:
(A) on the immediate premises where the activity is conducted; or
(B) en route between those premises and the person’s residence and is carrying the weapon unloaded.
(c) The provision of Section 46.02 prohibiting the carrying of a club does not apply to a noncommissioned security guard at an institution of higher education who carries a nightstick or similar club, and who has undergone 15 hours of training in the proper use of the club, including at least seven hours of training in the use of the club for nonviolent restraint. For the purposes of this subsection, “nonviolent restraint” means the use of reasonable force, not intended and not likely to inflict bodily injury.
(d) The provisions of Section 46.02 prohibiting the carrying of a firearm or carrying of a club do not apply to a public security officer employed by the adjutant general under Section 431.029, Government Code, in performance of official duties or while traveling to or from a place of duty.
(e) The provisions of Section 46.02 prohibiting the carrying of an illegal knife do not apply to an individual carrying a bowie knife or a sword used in a historical demonstration or in a ceremony in which the knife or sword is significant to the performance of the ceremony.
(f) Section 46.03(a)(6) does not apply to a person who possesses a firearm or club while in the actual discharge of official duties as:
(1) a member of the armed forces or state military forces, as defined by Section 431.001, Government Code; or
(2) an employee of a penal institution.
(g) The provisions of Sections 46.02 and 46.03 prohibiting the possession or carrying of a club do not apply to an animal control officer who holds a certificate issued under Section 829.006, Health and Safety Code, and who possesses or carries an instrument used specifically for deterring the bite of an animal while the officer is in the performance of official duties under the Health and Safety Code or is traveling to or from a place of duty.
(h) Repealed by Acts 2007, 80th Leg., R.S., Ch. 693, Sec. 3(1), eff. September 1, 2007.
(i) Repealed by Acts 2007, 80th Leg., R.S., Ch. 693, Sec. 3(2), eff. September 1, 2007.
(j) The provisions of Section 46.02 prohibiting the carrying of a handgun do not apply to an individual who carries a handgun as a participant in a historical reenactment performed in accordance with the rules of the Texas Alcoholic Beverage Commission.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
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Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
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