By: Eiland H.B. No. 4099
A BILL TO BE ENTITLED
AN ACT
relating to authorizing payment to FSLA-exempt and FSLA-nonexempt
state employees for unused compensatory time accrued during a
disaster declared by the governor under Section 418.014, Government
Code.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 659.015, Government Code, is amended by
amending Subsection (g) and adding Subsection (i) to read as
follows:
Sec. 659.015. OVERTIME COMPENSATION FOR EMPLOYEES SUBJECT
TO FAIR LABOR STANDARDS ACT. (a) This section applies only to a
state employee who is subject to the overtime provisions of the
federal Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et
seq.) and who is not an employee of the legislature, including an
employee of the lieutenant governor, or of a legislative agency.
(b) The employee is entitled to compensation for overtime as
provided by federal law and this section. To the extent that this
section and federal law prescribe a different rule for the same
circumstance, federal law controls without regard to whether this
section or federal law prescribes a stricter rule.
(c) An employee who is required to work hours in excess of 40
hours in a workweek is entitled to compensation for the excess hours
either by:
(1) the agency allowing or requiring the employee to
take compensatory time off at the rate of 1-1/2 hours off for each
hour of overtime; or
(2) at the discretion of the employing agency, in
cases in which granting compensatory time off is impractical, the
employee receiving pay for the overtime at the rate equal to 1-1/2
times the employee's regular rate of pay.
(d) Holidays or other paid leave taken during a workweek are
not counted as hours worked in computing the number of overtime
hours under Subsection (c) or (e).
(e) An employee may not accumulate more than 240 hours of
overtime credit that may be taken as compensatory leave under
Subsection (c)(1), except that an employee engaged in a public
safety activity, an emergency response activity, or a seasonal
activity may accumulate, in accordance with 29 U.S.C. Section
207(o)(3)(A), not more than 480 hours of overtime credit that may be
taken as compensatory leave under Subsection (c)(1). An employee
must be paid at the rate prescribed by Subsection (c)(2) for the
number of overtime hours the employee works that cause the employee
to exceed the amount of overtime credit the employee may
accumulate. In this Subsection, "overtime credit" means the number
of hours that is computed by multiplying the number of overtime
hours worked by 1-1/2.
(f) When an employee does not work more than 40 hours in a
workweek but the number of hours worked plus the number of hours of
holiday or other paid leave taken during the workweek exceeds 40
hours, the employee is entitled to compensatory time off at the rate
of one hour off for each of the excess hours. When an employee does
work 40 or more hours in a workweek and in addition takes holiday or
other paid leave during the workweek, and the total number of hours
worked still exceeds 40 after subtracting the hours compensable
under Subsections (c)-(e), the employee is entitled to compensatory
time off at the rate of one hour off for each of the remaining hours
in excess of 40. When an employee does not work more than 40 hours
in a workweek and the number of hours worked plus the number of
hours of holiday or other paid leave taken during the week does not
exceed 40 hours, the employee may not accrue compensatory time for
the week under this section.
(g) Compensatory time off to which an employee is entitled
under Subsection (f) must be taken during the 12-month period
following the end of the workweek in which the compensatory time was
accrued or it lapses. An employee may not be paid for that
compensatory time, except as provided by this subsection and
Subsection (i). An [However, an] employee of an institution of
higher education as defined by Section 61.003, Education Code, or
an employee engaged in a public safety activity, including highway
construction and maintenance or an emergency response activity, may
be paid at the employee's regular rate of pay for that compensatory
time if the employer determines that taking the compensatory time
off would disrupt normal teaching, research, or other critical
functions.
(h) Exceptions to the workweek overtime computation for
public safety, emergency response, or seasonal situations shall be
made in accordance with the federal Fair Labor Standards Act of 1938
(29 U.S.C. Section 201 et seq.).
(i) A state employee who is subject to the overtime
provisions of the federal Fair Labor Standards Act of 1938 (29
U.S.C. Section 201 et seq.) may be paid for any unused compensatory
time that was accrued under Subsection (f):
(1) for overtime work performed during a disaster declared
by the governor under Section 418.014; or
(2) in the case of a person employed by a state mental health
or mental retardation facility, when the employing agency
determines that the taking of regular compensatory time off would
be disruptive to normal business functions.
SECTION 2. Section 659.016, Government Code, is amended by
amending Subsection (i) and adding Subsection (j) to read as
follows:
Sec. 659.016. OVERTIME COMPENSATION FOR EMPLOYEES NOT
SUBJECT TO FAIR LABOR STANDARDS ACT; REDUCTIONS IN PAY. (a) This
section applies only to a state employee who is not subject to the
overtime provisions of the federal Fair Labor Standards Act of 1938
(29 U.S.C. Section 201 et seq.) and who is not an employee of the
legislature, including an employee of the lieutenant governor, or
of a legislative agency.
(b) When the sum of hours worked plus holiday or other paid
leave taken by a full-time employee during a workweek exceeds 40
hours, and not otherwise, the employee may be allowed to accrue
compensatory time for the number of hours that exceeds 40 hours.
When the sum of hours worked plus holiday or other paid leave taken
by a part-time employee during a workweek exceeds the number of
hours that the part-time employee is designated to work during the
workweek, and not otherwise, the employee may be allowed to accrue
compensatory time for the number of hours that exceeds the number of
hours that the employee is designated to work during the workweek.
(c) An employee who is exempt as an executive, professional,
or administrative employee under 29 U.S.C. Section 213(a)(1) may be
allowed compensatory time off during the 12-month period following
the end of the workweek in which the time that exceeds 40 hours
under Subsection (b) was accrued, at a rate not to exceed one hour
of compensatory time off for each hour of time that exceeds 40 hours
under Subsection (b) accrued.
(d) In accordance with 29 C.F.R. Section 541.118 and subject
to that section's exceptions as described by this section, an
employee who is exempt as an executive, professional, or
administrative employee under 29 U.S.C. Section 213(a)(1) is
entitled to receive full salary for any week in which the employee
performs work without regard to the number of days and hours worked.
This is also subject to the general rule that an employee need not
be paid for any workweek in which the employee performs no work.
(e) A deduction may be made from the salary of an employee
who is exempt as an executive, professional, or administrative
employee under 29 U.S.C. Section 213 (a)(1) if:
(1) the employee is not at work for a full day or
longer for personal reasons other than sickness, accident, jury
duty, attendance as a witness at a judicial proceeding, or
temporary military leave;
(2) the employee is not at work for a full day or
longer because of sickness or disability, including sickness or
disability covered by workers' compensation benefits, and the
employee's paid sick leave or workers' compensation benefits have
been exhausted;
(3) the deduction is a penalty imposed for a violation
of a significant safety rule relating to prevention of serious
danger in the workplace to other persons, including other
employees; or
(4) in accordance with the special provisions
applicable to executive, professional, or administrative employees
of public agencies set forth in 29 C.F.R. Section 541.5d, the
employee is not at work for less than one day for personal reasons
or because of illness or injury and accrued leave is not used by the
employee because:
(A) permission to use accrued leave was not
sought or was denied;
(B) accrued leave has been exhausted; or
(C) the employee chooses to use leave without
pay.
(f) In accordance with 29 C.F.R. Section 541.5d, a deduction
from the pay of an executive, professional, or administrative
employee because of an absence from work caused by a furlough
related to the budget does not affect the employee's status as an
employee paid on a salary basis, except for any workweek in which
the furlough occurs and for which the employee's pay is accordingly
reduced.
(g) If a deduction is made from an employee's salary in
violation of United States Department of Labor regulations, the
employee is entitled to reimbursement of the amount that should not
have been deducted.
(h) An employee who is not subject to the federal Fair Labor
Standards Act of 1938 under 29 U.S.C. Section 203(e)(2)(C) because
the employee is a staff member, appointee, or immediate adviser of
an elected officeholder may be allowed compensatory time off under
the terms and conditions determined by the officeholder.
(i) Except as provided by Subsection (j), an [An] employee
covered by this section may not be paid for any unused compensatory
time.
(j) An employee who is exempt as an executive, professional,
or administrative employee under 29 U.S.C. Section 213(a)(1) may be
paid for any unused compensatory time that was accrued under
Subsection (b):
(1) for overtime work performed during a disaster declared
by the governor under Section 418.014; or
(2) in the case of a person employed by a state mental health
or mental retardation facility, when the employing agency
determines that the taking of regular compensatory time off would
be disruptive to normal business functions.
Section 3. This Act takes effect September 1, 2009.