81R5462 ALB-D
By: McClendon H.B. No. 1057
A BILL TO BE ENTITLED
AN ACT
relating to family care leave for certain employees; providing a
civil penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 204.022(a), Labor Code, is amended to
read as follows:
(a) Benefits computed on benefit wage credits of an employee
or former employee may not be charged to the account of an employer
if the employee's last separation from the employer's employment
before the employee's benefit year:
(1) was required by a federal statute;
(2) was required by a statute of this state or an
ordinance of a municipality of this state;
(3) would have disqualified the employee under Section
207.044, 207.045, 207.051, or 207.053 if the employment had been
the employee's last work;
(4) imposes a disqualification under Section 207.044,
207.045, 207.051, or 207.053;
(5) was caused by a medically verifiable illness of
the employee or the employee's minor child;
(6) was based on a natural disaster that results in a
disaster declaration by the president of the United States under
the Robert T. Stafford Disaster Relief and Emergency Assistance Act
(42 U.S.C. Section 5121 et seq.), if the employee would have been
entitled to unemployment assistance benefits under Section 410 of
that act (42 U.S.C. Section 5177) had the employee not received
state unemployment compensation benefits;
(7) was caused by a natural disaster, fire, flood, or
explosion that causes employees to be separated from one employer's
employment;
(8) was based on a disaster that results in a disaster
declaration by the governor under Section 418.014, Government Code;
(9) resulted from the employee's resigning from
partial employment to accept other employment that the employee
reasonably believed would increase the employee's weekly wage;
(10) was caused by the employer being called to active
military service in any branch of the United States armed forces on
or after January 1, 2003;
(11) resulted from the employee leaving the employee's
workplace to protect the employee from family violence or stalking
as evidenced by:
(A) an active or recently issued protective order
documenting family violence against, or the stalking of, the
employee or the potential for family violence against, or the
stalking of, the employee;
(B) a police record documenting family violence
against, or the stalking of, the employee; or
(C) a physician's statement or other medical
documentation that describes the family violence against the
employee that:
(i) is recorded in any form or medium that
identifies the employee as the patient; and
(ii) relates to the history, diagnosis,
treatment, or prognosis of the patient;
(12) resulted from a move from the area of the
employee's employment that:
(A) was made with the employee's spouse who is a
member of the armed forces of the United States; and
(B) resulted from the spouse's permanent change
of station of longer than 120 days or a tour of duty of longer than
one year;
(13) was caused by the employee being unable to
perform the work as a result of a disability for which the employee
is receiving disability insurance benefits under 42 U.S.C. Section
423; [or]
(14) resulted from the employee leaving the employee's
workplace to care for the employee's terminally ill spouse as
evidenced by a physician's statement or other medical
documentation, but only if no reasonable, alternative care was
available; or
(15) resulted from the birth of the employee's child or
the placement of a child with the employee in connection with the
adoption or foster care of the child by the employee and the
employee was paid benefits under Chapter 218.
SECTION 2. Subtitle A, Title 4, Labor Code, is amended by
adding Chapter 218 to read as follows:
CHAPTER 218. FAMILY CARE LEAVE UNEMPLOYMENT BENEFITS
Sec. 218.001. DEFINITIONS. In this chapter:
(1) "Child" means a person:
(A) who is a biological, adopted, or foster
child, a stepchild, or a legal ward of an employee; or
(B) for whom the employee stands in loco
parentis.
(2) "Employee" means an individual who performs
services for an employer for compensation under an oral or written
contract of hire, whether express or implied. The term does not
include an independent contractor.
(3) "Employer" means a person who employs employees.
Sec. 218.002. APPLICABILITY OF CHAPTER. This chapter
applies to each employer who employs 100 or more employees in this
state.
Sec. 218.003. FAMILY CARE LEAVE. An employee who has been
employed by the employer for at least six months is entitled to use
the employee's choice of not less than two weeks of accrued paid
sick leave or other accrued paid leave due to:
(1) the birth of the employee's child; or
(2) the placement of a child with the employee in
connection with the adoption or foster care of the child by the
employee.
Sec. 218.004. ELIGIBILITY FOR FAMILY CARE LEAVE
UNEMPLOYMENT BENEFITS. An employee is eligible for not less than
two weeks of family care leave unemployment benefits under this
chapter due to the birth of the employee's child or the placement of
a child with the employee in connection with the adoption or foster
care of the child by the employee if:
(1) the employer does not provide paid leave to
employees;
(2) the employee does not have adequate leave
accumulated; or
(3) the employee is not eligible to use leave.
Sec. 218.005. LEAVE CONCURRENT WITH FEDERAL FAMILY LEAVE
ACT. An employee who is entitled to leave under the federal Family
and Medical Leave Act of 1993 (29 U.S.C. Section 2601 et seq.) must
take leave under that law concurrent with any leave taken under this
chapter.
Sec. 218.006. WEEKLY BENEFIT AMOUNT; MAXIMUM BENEFIT
AMOUNTS. (a) An employee who is eligible for family care
unemployment benefits under this chapter is entitled to a weekly
benefit amount equal to the amount for which the employee would be
eligible under Section 207.002.
(b) The maximum amount payable to an employee under this
chapter is six times the employee's weekly benefit amount in any
12-month period.
(c) An employee may not receive more than six weeks of
benefits under this chapter in any 12-month period.
Sec. 218.007. NOTICE; CIVIL PENALTY. (a) Each employer
shall post in conspicuous places on the premises of the employer
where notices to employees and applicants for employment are
customarily posted a notice, prepared or approved by the
commission, setting forth the pertinent provisions of this chapter
and information relating to the enforcement of this chapter.
(b) An employer who wilfully violates this section is liable
for a civil penalty not to exceed $100 for each violation. The
attorney general may bring an action to collect a civil penalty
under this section. Civil penalties assessed under this section
shall be deposited in the general revenue fund.
Sec. 218.008. INSTITUTION OF PAID LEAVE PROGRAM NOT
REQUIRED. This chapter does not require an employer who does not
provide paid sick leave or other paid medical leave to institute a
program of paid leave for any situation in which that employer is
not normally providing paid leave.
Sec. 218.009. EMPLOYMENT AND BENEFITS PROTECTION;
EXCEPTION. (a) An employee who takes leave under Section 218.003 or
218.004 is entitled, on return from the leave, to reinstatement in
the former position of employment or an equivalent position of
employment with equivalent employment benefits, pay, and other
terms and conditions of employment.
(b) Leave taken under Section 218.003 or 218.004 may not
result in the loss of any employment benefit accrued before the date
on which the leave began.
(c) This section does not entitle an employee who is
reinstated in employment to:
(1) the accrual of seniority or other employment
benefits during any period of leave; or
(2) any right, benefit, or position of employment
other than any right, benefit, or position to which the employee
would have been entitled had the employee not taken the leave.
(d) This section does not prohibit an employer from
requiring an employee on leave under Section 218.003 or 218.004 to
report periodically to the employer on the status and intention of
the employee to return to work.
Sec. 218.010. COMMISSION POWERS AND DUTIES. The commission
shall adopt rules as necessary to implement this chapter.
Sec. 218.011. PROHIBITED ACTS. (a) An employer may not
interfere with, restrain, or deny the exercise of or the attempt to
exercise any right provided under this chapter.
(b) An employer may not discharge or otherwise discriminate
against an individual for opposing a practice made unlawful by this
chapter.
(c) A person may not discharge or otherwise discriminate
against an individual because that individual has:
(1) filed a charge, or instituted or caused to be
instituted a proceeding, under or related to this chapter;
(2) given, or is about to give, any information in
connection with an inquiry or proceeding relating to a right
provided under this chapter; or
(3) testified, or is about to testify, in an inquiry or
proceeding relating to a right provided under this chapter.
Sec. 218.012. ENFORCEMENT. (a) An employer who violates
Section 218.011 is liable to an affected individual for damages
equal to the amount of:
(1) any wages, salary, employment benefits, or other
compensation denied or lost to the individual by reason of the
violation or, if wages, salary, employment benefits, or other
compensation has not been denied or lost, any actual monetary
losses sustained by the individual as a direct result of the
violation, including the cost of providing necessary care, not to
exceed an amount equal to the individual's wages or salary for 12
weeks; and
(2) interest on the amount determined under
Subdivision (1) computed at the prevailing rate of interest on
judgments.
(b) The employer is also liable for equitable relief as
appropriate, including employment, reinstatement, and promotion.
(c) An action to recover damages or equitable relief under
this section may be maintained by any one or more individuals for
and on behalf of those individuals.
(d) In addition to any judgment awarded to the plaintiff,
the court may require the defendant to pay reasonable attorney's
fees, reasonable expert witness fees, and other costs.
Sec. 218.013. RULES. The commission shall adopt rules as
necessary to administer this chapter.
SECTION 3. (a) This Act applies only to a suspension,
termination, or other adverse employment action that is taken by an
employer against an employee because of an employee absence
authorized under Chapter 218, Labor Code, as added by this Act, that
occurs on or after January 1, 2010. Action taken by an employer
against an employee for an employee absence occurring before
January 1, 2010, is governed by the law in effect immediately before
the effective date of this Act, and the former law is continued in
effect for that purpose.
(b) An employee is not entitled to take leave as provided by
Chapter 218, Labor Code, as added by this Act, before January 1,
2010.
(c) The Texas Workforce Commission shall adopt rules and
prescribe notices and forms as required by Chapter 218, Labor Code,
as added by this Act, not later than November 1, 2009. In adopting
rules under this Act, the commission shall develop procedures for
the payment of unemployment benefits under Chapter 218, Labor Code,
as added by this Act, to employees who become eligible for family
care leave unemployment benefits under that chapter on and after
January 1, 2010.
SECTION 4. This Act takes effect September 1, 2009.