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A BILL TO BE ENTITLED
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AN ACT
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relating to the consideration by employers of the consumer credit |
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reports or other credit information of employees and applicants for |
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employment; providing civil and administrative penalties. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 52, Labor Code, is amended by adding |
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Subchapter H to read as follows: |
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SUBCHAPTER H. CONSIDERATION OF CONSUMER CREDIT REPORTS |
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Sec. 52.081. DEFINITIONS. In this subchapter: |
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(1) "Applicant" means a person who has made an oral or |
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written application with an employer, or has sent a resume or other |
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correspondence to an employer, indicating an interest in |
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employment. |
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(2) "Commission" means the Texas Workforce |
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Commission. |
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(3) "Consumer" means an individual whose credit |
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information is used or whose credit score is computed. |
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(4) "Consumer reporting agency" means any person that, |
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for monetary fees or dues or on a cooperative nonprofit basis, |
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regularly engages in the practice of assembling or evaluating |
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consumer credit information or other information on consumers for |
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the purpose of furnishing consumer reports to third parties. |
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(5) "Credit information" means any credit-related |
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information derived from a credit report or found in a credit |
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report. The term does not include information that is not |
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credit-related, regardless of whether that information is |
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contained in a credit report. |
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(6) "Credit report" means any written, oral, or other |
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communication of information by a consumer reporting agency that |
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bears on a consumer's creditworthiness, credit standing, or credit |
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capacity. |
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(7) "Employee" and "employer" have the meanings |
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assigned by Section 21.002. |
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Sec. 52.082. RULES. The commission may adopt rules as |
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necessary to implement this subchapter. |
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Sec. 52.083. EFFECT ON OTHER LAW. This subchapter does not |
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limit or affect the rights, remedies, or procedures available to an |
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individual who alleges an unlawful employment practice prohibited |
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under federal law, another state law, or an order or ordinance of a |
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political subdivision of this state. |
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Sec. 52.084. PROHIBITED ACTS BY EMPLOYER. An employer may |
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not: |
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(1) directly or indirectly require, request, suggest, |
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or cause an employee or applicant, as a condition of employment, to: |
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(A) submit a credit report or other credit |
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information; or |
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(B) authorize the employer's access to the |
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employee's or applicant's credit report or other credit |
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information; |
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(2) use, accept, refer to, or inquire concerning the |
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employee's or applicant's credit report or other credit |
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information; or |
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(3) discharge, discipline, discriminate against, or |
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deny employment or promotion to an employee or applicant: |
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(A) on the basis of the employee's or applicant's |
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credit report or other credit information; or |
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(B) because the employee or applicant: |
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(i) refuses, declines, or fails to submit a |
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credit report or other credit information; or |
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(ii) refuses, declines, or fails to |
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authorize the employer access to the employee's or applicant's |
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credit report or other credit information. |
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Sec. 52.085. RETALIATION AND COERCION PROHIBITED. (a) An |
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employer may not discriminate against an employee or applicant |
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because the individual: |
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(1) opposes any act or practice prohibited by this |
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subchapter; |
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(2) makes or files a charge in connection with an act |
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or practice prohibited by this subchapter; or |
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(3) assists, testifies, or participates in any manner |
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in an investigation, proceeding, or hearing conducted under this |
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subchapter. |
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(b) An employer may not coerce, intimidate, threaten, or |
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interfere with an employee or applicant in the exercise or |
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enjoyment of, or because the employee or applicant for employment |
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has exercised, enjoyed, assisted, or encouraged the exercise or |
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enjoyment of, a right granted or protected by this subchapter. |
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Sec. 52.086. ADMINISTRATIVE PENALTY. (a) An employer |
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commits an administrative violation if the employer violates this |
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subchapter. |
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(b) The penalty for a violation under this section may not |
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exceed $9,000. In assessing a penalty under this section, the |
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commission shall consider: |
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(1) prior violations of this subchapter by the |
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employer; |
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(2) the severity of the violation; and |
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(3) any other factor the commission determines to be |
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relevant. |
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Sec. 52.087. CIVIL ACTION BY EMPLOYEE OR APPLICANT. (a) An |
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employee or applicant aggrieved by a violation of this subchapter |
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may bring a civil action to enforce rights protected by this |
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subchapter, including an action for appropriate injunctive relief, |
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in the district court in the county in which the alleged violation |
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occurred or in which the alleged violator's residence or principal |
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place of business is located. |
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(b) An action under this section must be brought not later |
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than the third anniversary of the date of the violation. |
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(c) The employer of an employee or applicant who prevails in |
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a civil action under this section is liable to the affected employee |
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or applicant for damages equal to the amount of any wages, salary, |
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employment benefits, or other compensation denied or lost to the |
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employee or applicant by reason of the violation or, if wages, |
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salary, employment benefits, or other compensation has not been |
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denied or lost, any actual monetary losses sustained by the |
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employee or applicant as a direct result of the violation. |
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(d) An employer described by Subsection (c) is also liable |
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for equitable relief as appropriate, including employment, |
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reinstatement, and promotion. |
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(e) In addition to any judgment awarded to an employee or |
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applicant, the court may require the employer to pay reasonable |
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attorney's fees, reasonable expert witness fees, and other costs. |
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Sec. 52.088. CIVIL ACTION BY COMMISSION. (a) The |
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commission may bring an action to restrain violations of this |
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subchapter. |
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(b) In an action brought under this section, the court may: |
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(1) issue a temporary or permanent restraining order |
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or injunction to require compliance with this subchapter; and |
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(2) order any equitable relief as appropriate, |
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including employment, reinstatement, and promotion. |
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Sec. 52.089. NONAPPLICABILITY. (a) This subchapter does |
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not apply to: |
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(1) an employee in or an applicant for: |
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(A) a position for which disclosure or |
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consideration of a credit report or other credit information is |
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required by law or by a self-regulated industry organization; |
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(B) a position as a peace officer as defined by |
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Article 2.12, Code of Criminal Procedure; |
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(C) a position that requires a surety or other |
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type of bond; |
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(D) a position that requires federal or state |
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security clearance; |
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(E) a position that is nonclerical and that has |
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regular access to trade secrets, intelligence information, or |
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national security information; |
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(F) a managerial position which involves setting |
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the direction or control of a business or a division, unit or agency |
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of a business, and that has financial responsibility over an |
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employer's funds or assets worth at least $10,000; or |
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(G) a managerial position that: |
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(i) involves setting the direction or |
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control of a business or a division, unit or agency of a business, |
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and that involves digital security systems, including controlling |
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access to all parts of an employer's computer system; and |
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(ii) does not include all members in an |
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employer's information technology department or a person who has |
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access to a computer system or network available to employees |
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generally; or |
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(2) an employer engaged in financial services. |
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(b) The exemptions provided by Subsection (a)(1) apply only |
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to the specific position that an employee is in or for which an |
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applicant applies and not the employee or the applicant generally. |
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An employer or industry as a whole is not exempt from the |
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requirements of this subchapter. |
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(c) For purposes of this section: |
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(1) "Employer engaged in financial services" means: |
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(A) a bank, savings and loan association or |
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savings bank, credit union, or other depository institution or its |
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subsidiaries or affiliates; |
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(B) a mortgage banker or residential mortgage |
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loan company; |
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(C) a securities firm or registered financial |
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advisory firm; |
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(D) a regulated loan company; or |
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(E) an insurance company or insurance agency. |
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(2) "Trade secret" means: |
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(A) confidential or proprietary business |
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information; or |
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(B) information, including a formula, pattern, |
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compilation, program, device, method, technique, or process that: |
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(i) derives independent economic value, |
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actual or potential, from not being generally known to, and not |
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being readily ascertainable by proper means by, other persons who |
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could obtain economic value from the disclosure or use of the |
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information; and |
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(ii) is the subject of efforts that are |
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reasonable under the circumstances to maintain its secrecy. |
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SECTION 2. This Act applies only to an adverse employment |
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action that is taken by an employer against an employee or applicant |
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for employment or other employer conduct that occurs on or after |
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January 1, 2018. Action taken by an employer or other conduct that |
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occurs before January 1, 2018, is governed by the law in effect |
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immediately before the effective date of this Act, and the former |
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law is continued in effect for that purpose. |
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SECTION 3. This Act takes effect September 1, 2017. |