Texas 2009 - 81st Regular

Texas House Bill HB4099 Compare Versions

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1	1	By: Eiland H.B. No. 4099
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to authorizing payment to FSLA-exempt and FSLA-nonexempt
7	7	state employees for unused compensatory time accrued during a
8	8	disaster declared by the governor under Section 418.014, Government
9	9	Code.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Section 659.015, Government Code, is amended by
12	12	amending Subsection (g) and adding Subsection (i) to read as
13	13	follows:
14	14	Sec. 659.015. OVERTIME COMPENSATION FOR EMPLOYEES SUBJECT
15	15	TO FAIR LABOR STANDARDS ACT. (a) This section applies only to a
16	16	state employee who is subject to the overtime provisions of the
17	17	federal Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et
18	18	seq.) and who is not an employee of the legislature, including an
19	19	employee of the lieutenant governor, or of a legislative agency.
20	20	(b) The employee is entitled to compensation for overtime as
21	21	provided by federal law and this section. To the extent that this
22	22	section and federal law prescribe a different rule for the same
23	23	circumstance, federal law controls without regard to whether this
24	24	section or federal law prescribes a stricter rule.
25	25	(c) An employee who is required to work hours in excess of 40
26	26	hours in a workweek is entitled to compensation for the excess hours
27	27	either by:
28	28	(1) the agency allowing or requiring the employee to
29	29	take compensatory time off at the rate of 1-1/2 hours off for each
30	30	hour of overtime; or
31	31	(2) at the discretion of the employing agency, in
32	32	cases in which granting compensatory time off is impractical, the
33	33	employee receiving pay for the overtime at the rate equal to 1-1/2
34	34	times the employee's regular rate of pay.
35	35	(d) Holidays or other paid leave taken during a workweek are
36	36	not counted as hours worked in computing the number of overtime
37	37	hours under Subsection (c) or (e).
38	38	(e) An employee may not accumulate more than 240 hours of
39	39	overtime credit that may be taken as compensatory leave under
40	40	Subsection (c)(1), except that an employee engaged in a public
41	41	safety activity, an emergency response activity, or a seasonal
42	42	activity may accumulate, in accordance with 29 U.S.C. Section
43	43	207(o)(3)(A), not more than 480 hours of overtime credit that may be
44	44	taken as compensatory leave under Subsection (c)(1). An employee
45	45	must be paid at the rate prescribed by Subsection (c)(2) for the
46	46	number of overtime hours the employee works that cause the employee
47	47	to exceed the amount of overtime credit the employee may
48	48	accumulate. In this Subsection, "overtime credit" means the number
49	49	of hours that is computed by multiplying the number of overtime
50	50	hours worked by 1-1/2.
51	51	(f) When an employee does not work more than 40 hours in a
52	52	workweek but the number of hours worked plus the number of hours of
53	53	holiday or other paid leave taken during the workweek exceeds 40
54	54	hours, the employee is entitled to compensatory time off at the rate
55	55	of one hour off for each of the excess hours. When an employee does
56	56	work 40 or more hours in a workweek and in addition takes holiday or
57	57	other paid leave during the workweek, and the total number of hours
58	58	worked still exceeds 40 after subtracting the hours compensable
59	59	under Subsections (c)-(e), the employee is entitled to compensatory
60	60	time off at the rate of one hour off for each of the remaining hours
61	61	in excess of 40. When an employee does not work more than 40 hours
62	62	in a workweek and the number of hours worked plus the number of
63	63	hours of holiday or other paid leave taken during the week does not
64	64	exceed 40 hours, the employee may not accrue compensatory time for
65	65	the week under this section.
66	66	(g) Compensatory time off to which an employee is entitled
67	67	under Subsection (f) must be taken during the 12-month period
68	68	following the end of the workweek in which the compensatory time was
69	69	accrued or it lapses. An employee may not be paid for that
70	70	compensatory time, except as provided by this subsection and
71	71	Subsection (i). An [However, an] employee of an institution of
72	72	higher education as defined by Section 61.003, Education Code, or
73	73	an employee engaged in a public safety activity, including highway
74	74	construction and maintenance or an emergency response activity, may
75	75	be paid at the employee's regular rate of pay for that compensatory
76	76	time if the employer determines that taking the compensatory time
77	77	off would disrupt normal teaching, research, or other critical
78	78	functions.
79	79	(h) Exceptions to the workweek overtime computation for
80	80	public safety, emergency response, or seasonal situations shall be
81	81	made in accordance with the federal Fair Labor Standards Act of 1938
82	82	(29 U.S.C. Section 201 et seq.).
83	83	(i) A state employee who is subject to the overtime
84	84	provisions of the federal Fair Labor Standards Act of 1938 (29
85	85	U.S.C. Section 201 et seq.) may be paid for any unused compensatory
86	86	time that was accrued under Subsection (f):
87	87	(1) for overtime work performed during a disaster declared
88	88	by the governor under Section 418.014; or
89	89	(2) in the case of a person employed by a state mental health
90	90	or mental retardation facility, when the employing agency
91	91	determines that the taking of regular compensatory time off would
92	92	be disruptive to normal business functions.
93	93	SECTION 2. Section 659.016, Government Code, is amended by
94	94	amending Subsection (i) and adding Subsection (j) to read as
95	95	follows:
96	96	Sec. 659.016. OVERTIME COMPENSATION FOR EMPLOYEES NOT
97	97	SUBJECT TO FAIR LABOR STANDARDS ACT; REDUCTIONS IN PAY. (a) This
98	98	section applies only to a state employee who is not subject to the
99	99	overtime provisions of the federal Fair Labor Standards Act of 1938
100	100	(29 U.S.C. Section 201 et seq.) and who is not an employee of the
101	101	legislature, including an employee of the lieutenant governor, or
102	102	of a legislative agency.
103	103	(b) When the sum of hours worked plus holiday or other paid
104	104	leave taken by a full-time employee during a workweek exceeds 40
105	105	hours, and not otherwise, the employee may be allowed to accrue
106	106	compensatory time for the number of hours that exceeds 40 hours.
107	107	When the sum of hours worked plus holiday or other paid leave taken
108	108	by a part-time employee during a workweek exceeds the number of
109	109	hours that the part-time employee is designated to work during the
110	110	workweek, and not otherwise, the employee may be allowed to accrue
111	111	compensatory time for the number of hours that exceeds the number of
112	112	hours that the employee is designated to work during the workweek.
113	113	(c) An employee who is exempt as an executive, professional,
114	114	or administrative employee under 29 U.S.C. Section 213(a)(1) may be
115	115	allowed compensatory time off during the 12-month period following
116	116	the end of the workweek in which the time that exceeds 40 hours
117	117	under Subsection (b) was accrued, at a rate not to exceed one hour
118	118	of compensatory time off for each hour of time that exceeds 40 hours
119	119	under Subsection (b) accrued.
120	120	(d) In accordance with 29 C.F.R. Section 541.118 and subject
121	121	to that section's exceptions as described by this section, an
122	122	employee who is exempt as an executive, professional, or
123	123	administrative employee under 29 U.S.C. Section 213(a)(1) is
124	124	entitled to receive full salary for any week in which the employee
125	125	performs work without regard to the number of days and hours worked.
126	126	This is also subject to the general rule that an employee need not
127	127	be paid for any workweek in which the employee performs no work.
128	128	(e) A deduction may be made from the salary of an employee
129	129	who is exempt as an executive, professional, or administrative
130	130	employee under 29 U.S.C. Section 213 (a)(1) if:
131	131	(1) the employee is not at work for a full day or
132	132	longer for personal reasons other than sickness, accident, jury
133	133	duty, attendance as a witness at a judicial proceeding, or
134	134	temporary military leave;
135	135	(2) the employee is not at work for a full day or
136	136	longer because of sickness or disability, including sickness or
137	137	disability covered by workers' compensation benefits, and the
138	138	employee's paid sick leave or workers' compensation benefits have
139	139	been exhausted;
140	140	(3) the deduction is a penalty imposed for a violation
141	141	of a significant safety rule relating to prevention of serious
142	142	danger in the workplace to other persons, including other
143	143	employees; or
144	144	(4) in accordance with the special provisions
145	145	applicable to executive, professional, or administrative employees
146	146	of public agencies set forth in 29 C.F.R. Section 541.5d, the
147	147	employee is not at work for less than one day for personal reasons
148	148	or because of illness or injury and accrued leave is not used by the
149	149	employee because:
150	150	(A) permission to use accrued leave was not
151	151	sought or was denied;
152	152	(B) accrued leave has been exhausted; or
153	153	(C) the employee chooses to use leave without
154	154	pay.
155	155	(f) In accordance with 29 C.F.R. Section 541.5d, a deduction
156	156	from the pay of an executive, professional, or administrative
157	157	employee because of an absence from work caused by a furlough
158	158	related to the budget does not affect the employee's status as an
159	159	employee paid on a salary basis, except for any workweek in which
160	160	the furlough occurs and for which the employee's pay is accordingly
161	161	reduced.
162	162	(g) If a deduction is made from an employee's salary in
163	163	violation of United States Department of Labor regulations, the
164	164	employee is entitled to reimbursement of the amount that should not
165	165	have been deducted.
166	166	(h) An employee who is not subject to the federal Fair Labor
167	167	Standards Act of 1938 under 29 U.S.C. Section 203(e)(2)(C) because
168	168	the employee is a staff member, appointee, or immediate adviser of
169	169	an elected officeholder may be allowed compensatory time off under
170	170	the terms and conditions determined by the officeholder.
171	171	(i) Except as provided by Subsection (j), an [An] employee
172	172	covered by this section may not be paid for any unused compensatory
173	173	time.
174	174	(j) An employee who is exempt as an executive, professional,
175	175	or administrative employee under 29 U.S.C. Section 213(a)(1) may be
176	176	paid for any unused compensatory time that was accrued under
177	177	Subsection (b):
178	178	(1) for overtime work performed during a disaster declared
179	179	by the governor under Section 418.014; or
180	180	(2) in the case of a person employed by a state mental health
181	181	or mental retardation facility, when the employing agency
182	182	determines that the taking of regular compensatory time off would
183	183	be disruptive to normal business functions.
184	184	Section 3. This Act takes effect September 1, 2009.