FEMA may not be the only government agency with which Texas employers may have to contend while attempting to recover from hurricane storm damage and business interruption. The Texas Workforce Commission, Civil Rights Division (“TWFC”) could cause employers a tidal surge size headache as well. A little known provision of the Texas Labor Code, Section 22.002, makes it unlawful for an employer to “discharge or in any other manner discriminate against an employee who leaves the employee’s place of employment to participate in a general public evacuation ordered under an emergency evacuation order” — which would include Hurricane Rita evacuation orders issued by Governor Perry or by the mayors of Galveston, Houston, Beaumont, etc. The section contains an exception allowing discharge of emergency services personnel who leave their post during such a crisis.
The TWFC has issued a press release informing the public of Chapter 22’s prohibition, modified its Intake Questionnaire to add “emergency evacuation” as a basis for discrimination, and begun accepting discrimination charges for alleged violations!
There are no reported cases interpreting Chapter 22. Presumably, it will be interpreted similarly with other discrimination statutes, e.g., as long as the discharge was motivated by legitimate, nondiscriminatory reasons—including economic necessity, business interruption, etc. — there would be no violation. Stay tuned!