Texas 2009 - 81st Regular

Texas House Bill HB1057 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	81R5462 ALB-D
2	2	By: McClendon H.B. No. 1057
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to family care leave for certain employees; providing a
8	8	civil penalty.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 204.022(a), Labor Code, is amended to
11	11	read as follows:
12	12	(a) Benefits computed on benefit wage credits of an employee
13	13	or former employee may not be charged to the account of an employer
14	14	if the employee's last separation from the employer's employment
15	15	before the employee's benefit year:
16	16	(1) was required by a federal statute;
17	17	(2) was required by a statute of this state or an
18	18	ordinance of a municipality of this state;
19	19	(3) would have disqualified the employee under Section
20	20	207.044, 207.045, 207.051, or 207.053 if the employment had been
21	21	the employee's last work;
22	22	(4) imposes a disqualification under Section 207.044,
23	23	207.045, 207.051, or 207.053;
24	24	(5) was caused by a medically verifiable illness of
25	25	the employee or the employee's minor child;
26	26	(6) was based on a natural disaster that results in a
27	27	disaster declaration by the president of the United States under
28	28	the Robert T. Stafford Disaster Relief and Emergency Assistance Act
29	29	(42 U.S.C. Section 5121 et seq.), if the employee would have been
30	30	entitled to unemployment assistance benefits under Section 410 of
31	31	that act (42 U.S.C. Section 5177) had the employee not received
32	32	state unemployment compensation benefits;
33	33	(7) was caused by a natural disaster, fire, flood, or
34	34	explosion that causes employees to be separated from one employer's
35	35	employment;
36	36	(8) was based on a disaster that results in a disaster
37	37	declaration by the governor under Section 418.014, Government Code;
38	38	(9) resulted from the employee's resigning from
39	39	partial employment to accept other employment that the employee
40	40	reasonably believed would increase the employee's weekly wage;
41	41	(10) was caused by the employer being called to active
42	42	military service in any branch of the United States armed forces on
43	43	or after January 1, 2003;
44	44	(11) resulted from the employee leaving the employee's
45	45	workplace to protect the employee from family violence or stalking
46	46	as evidenced by:
47	47	(A) an active or recently issued protective order
48	48	documenting family violence against, or the stalking of, the
49	49	employee or the potential for family violence against, or the
50	50	stalking of, the employee;
51	51	(B) a police record documenting family violence
52	52	against, or the stalking of, the employee; or
53	53	(C) a physician's statement or other medical
54	54	documentation that describes the family violence against the
55	55	employee that:
56	56	(i) is recorded in any form or medium that
57	57	identifies the employee as the patient; and
58	58	(ii) relates to the history, diagnosis,
59	59	treatment, or prognosis of the patient;
60	60	(12) resulted from a move from the area of the
61	61	employee's employment that:
62	62	(A) was made with the employee's spouse who is a
63	63	member of the armed forces of the United States; and
64	64	(B) resulted from the spouse's permanent change
65	65	of station of longer than 120 days or a tour of duty of longer than
66	66	one year;
67	67	(13) was caused by the employee being unable to
68	68	perform the work as a result of a disability for which the employee
69	69	is receiving disability insurance benefits under 42 U.S.C. Section
70	70	423; [or]
71	71	(14) resulted from the employee leaving the employee's
72	72	workplace to care for the employee's terminally ill spouse as
73	73	evidenced by a physician's statement or other medical
74	74	documentation, but only if no reasonable, alternative care was
75	75	available; or
76	76	(15) resulted from the birth of the employee's child or
77	77	the placement of a child with the employee in connection with the
78	78	adoption or foster care of the child by the employee and the
79	79	employee was paid benefits under Chapter 218.
80	80	SECTION 2. Subtitle A, Title 4, Labor Code, is amended by
81	81	adding Chapter 218 to read as follows:
82	82	CHAPTER 218. FAMILY CARE LEAVE UNEMPLOYMENT BENEFITS
83	83	Sec. 218.001. DEFINITIONS. In this chapter:
84	84	(1) "Child" means a person:
85	85	(A) who is a biological, adopted, or foster
86	86	child, a stepchild, or a legal ward of an employee; or
87	87	(B) for whom the employee stands in loco
88	88	parentis.
89	89	(2) "Employee" means an individual who performs
90	90	services for an employer for compensation under an oral or written
91	91	contract of hire, whether express or implied. The term does not
92	92	include an independent contractor.
93	93	(3) "Employer" means a person who employs employees.
94	94	Sec. 218.002. APPLICABILITY OF CHAPTER. This chapter
95	95	applies to each employer who employs 100 or more employees in this
96	96	state.
97	97	Sec. 218.003. FAMILY CARE LEAVE. An employee who has been
98	98	employed by the employer for at least six months is entitled to use
99	99	the employee's choice of not less than two weeks of accrued paid
100	100	sick leave or other accrued paid leave due to:
101	101	(1) the birth of the employee's child; or
102	102	(2) the placement of a child with the employee in
103	103	connection with the adoption or foster care of the child by the
104	104	employee.
105	105	Sec. 218.004. ELIGIBILITY FOR FAMILY CARE LEAVE
106	106	UNEMPLOYMENT BENEFITS. An employee is eligible for not less than
107	107	two weeks of family care leave unemployment benefits under this
108	108	chapter due to the birth of the employee's child or the placement of
109	109	a child with the employee in connection with the adoption or foster
110	110	care of the child by the employee if:
111	111	(1) the employer does not provide paid leave to
112	112	employees;
113	113	(2) the employee does not have adequate leave
114	114	accumulated; or
115	115	(3) the employee is not eligible to use leave.
116	116	Sec. 218.005. LEAVE CONCURRENT WITH FEDERAL FAMILY LEAVE
117	117	ACT. An employee who is entitled to leave under the federal Family
118	118	and Medical Leave Act of 1993 (29 U.S.C. Section 2601 et seq.) must
119	119	take leave under that law concurrent with any leave taken under this
120	120	chapter.
121	121	Sec. 218.006. WEEKLY BENEFIT AMOUNT; MAXIMUM BENEFIT
122	122	AMOUNTS. (a) An employee who is eligible for family care
123	123	unemployment benefits under this chapter is entitled to a weekly
124	124	benefit amount equal to the amount for which the employee would be
125	125	eligible under Section 207.002.
126	126	(b) The maximum amount payable to an employee under this
127	127	chapter is six times the employee's weekly benefit amount in any
128	128	12-month period.
129	129	(c) An employee may not receive more than six weeks of
130	130	benefits under this chapter in any 12-month period.
131	131	Sec. 218.007. NOTICE; CIVIL PENALTY. (a) Each employer
132	132	shall post in conspicuous places on the premises of the employer
133	133	where notices to employees and applicants for employment are
134	134	customarily posted a notice, prepared or approved by the
135	135	commission, setting forth the pertinent provisions of this chapter
136	136	and information relating to the enforcement of this chapter.
137	137	(b) An employer who wilfully violates this section is liable
138	138	for a civil penalty not to exceed $100 for each violation. The
139	139	attorney general may bring an action to collect a civil penalty
140	140	under this section. Civil penalties assessed under this section
141	141	shall be deposited in the general revenue fund.
142	142	Sec. 218.008. INSTITUTION OF PAID LEAVE PROGRAM NOT
143	143	REQUIRED. This chapter does not require an employer who does not
144	144	provide paid sick leave or other paid medical leave to institute a
145	145	program of paid leave for any situation in which that employer is
146	146	not normally providing paid leave.
147	147	Sec. 218.009. EMPLOYMENT AND BENEFITS PROTECTION;
148	148	EXCEPTION. (a) An employee who takes leave under Section 218.003 or
149	149	218.004 is entitled, on return from the leave, to reinstatement in
150	150	the former position of employment or an equivalent position of
151	151	employment with equivalent employment benefits, pay, and other
152	152	terms and conditions of employment.
153	153	(b) Leave taken under Section 218.003 or 218.004 may not
154	154	result in the loss of any employment benefit accrued before the date
155	155	on which the leave began.
156	156	(c) This section does not entitle an employee who is
157	157	reinstated in employment to:
158	158	(1) the accrual of seniority or other employment
159	159	benefits during any period of leave; or
160	160	(2) any right, benefit, or position of employment
161	161	other than any right, benefit, or position to which the employee
162	162	would have been entitled had the employee not taken the leave.
163	163	(d) This section does not prohibit an employer from
164	164	requiring an employee on leave under Section 218.003 or 218.004 to
165	165	report periodically to the employer on the status and intention of
166	166	the employee to return to work.
167	167	Sec. 218.010. COMMISSION POWERS AND DUTIES. The commission
168	168	shall adopt rules as necessary to implement this chapter.
169	169	Sec. 218.011. PROHIBITED ACTS. (a) An employer may not
170	170	interfere with, restrain, or deny the exercise of or the attempt to
171	171	exercise any right provided under this chapter.
172	172	(b) An employer may not discharge or otherwise discriminate
173	173	against an individual for opposing a practice made unlawful by this
174	174	chapter.
175	175	(c) A person may not discharge or otherwise discriminate
176	176	against an individual because that individual has:
177	177	(1) filed a charge, or instituted or caused to be
178	178	instituted a proceeding, under or related to this chapter;
179	179	(2) given, or is about to give, any information in
180	180	connection with an inquiry or proceeding relating to a right
181	181	provided under this chapter; or
182	182	(3) testified, or is about to testify, in an inquiry or
183	183	proceeding relating to a right provided under this chapter.
184	184	Sec. 218.012. ENFORCEMENT. (a) An employer who violates
185	185	Section 218.011 is liable to an affected individual for damages
186	186	equal to the amount of:
187	187	(1) any wages, salary, employment benefits, or other
188	188	compensation denied or lost to the individual by reason of the
189	189	violation or, if wages, salary, employment benefits, or other
190	190	compensation has not been denied or lost, any actual monetary
191	191	losses sustained by the individual as a direct result of the
192	192	violation, including the cost of providing necessary care, not to
193	193	exceed an amount equal to the individual's wages or salary for 12
194	194	weeks; and
195	195	(2) interest on the amount determined under
196	196	Subdivision (1) computed at the prevailing rate of interest on
197	197	judgments.
198	198	(b) The employer is also liable for equitable relief as
199	199	appropriate, including employment, reinstatement, and promotion.
200	200	(c) An action to recover damages or equitable relief under
201	201	this section may be maintained by any one or more individuals for
202	202	and on behalf of those individuals.
203	203	(d) In addition to any judgment awarded to the plaintiff,
204	204	the court may require the defendant to pay reasonable attorney's
205	205	fees, reasonable expert witness fees, and other costs.
206	206	Sec. 218.013. RULES. The commission shall adopt rules as
207	207	necessary to administer this chapter.
208	208	SECTION 3. (a) This Act applies only to a suspension,
209	209	termination, or other adverse employment action that is taken by an
210	210	employer against an employee because of an employee absence
211	211	authorized under Chapter 218, Labor Code, as added by this Act, that
212	212	occurs on or after January 1, 2010. Action taken by an employer
213	213	against an employee for an employee absence occurring before
214	214	January 1, 2010, is governed by the law in effect immediately before
215	215	the effective date of this Act, and the former law is continued in
216	216	effect for that purpose.
217	217	(b) An employee is not entitled to take leave as provided by
218	218	Chapter 218, Labor Code, as added by this Act, before January 1,
219	219	2010.
220	220	(c) The Texas Workforce Commission shall adopt rules and
221	221	prescribe notices and forms as required by Chapter 218, Labor Code,
222	222	as added by this Act, not later than November 1, 2009. In adopting
223	223	rules under this Act, the commission shall develop procedures for
224	224	the payment of unemployment benefits under Chapter 218, Labor Code,
225	225	as added by this Act, to employees who become eligible for family
226	226	care leave unemployment benefits under that chapter on and after
227	227	January 1, 2010.
228	228	SECTION 4. This Act takes effect September 1, 2009.