Texas 2013 - 83rd Regular

Texas House Bill HB1925 Compare Versions

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1	1	83R19131 MAW-F
2	2	By: J. Davis of Harris H.B. No. 1925
3	3	Substitute the following for H.B. No. 1925:
4	4	By: Murphy C.S.H.B. No. 1925
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to the classification of certain construction workers and
10	10	complaints filed with the Texas Workforce Commission; providing a
11	11	penalty.
12	12	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
13	13	SECTION 1. Subchapter B, Chapter 213, Labor Code, is
14	14	amended by adding Sections 213.026 and 213.027 to read as follows:
15	15	Sec. 213.026. CONSTRUCTION EMPLOYER REQUIREMENT TO REPORT
16	16	EMPLOYEES; PENALTY. (a) In this section, "construction employer"
17	17	means an employer who employs an individual to provide services
18	18	directly related to the erection, alteration, repair, renovation,
19	19	maintenance, or remodeling of a building, structure, appurtenance,
20	20	road, highway, bridge, dam, levee, canal, jetty, or other
21	21	improvement to or on real property, including moving, demolishing,
22	22	dredging, shoring, scaffolding, drilling, blasting, or excavating
23	23	real property.
24	24	(b) A construction employer shall properly report the
25	25	employment status of each employee of the construction employer for
26	26	the purposes of this subtitle and as required by commission rule.
27	27	(c) In addition to any other penalty under this subchapter,
28	28	a construction employer who violates this section shall pay to the
29	29	commission:
30	30	(1) a penalty in the amount of $100 for each employee
31	31	not properly reported for an initial violation by the employer; and
32	32	(2) a penalty not to exceed $1,000 for each employee
33	33	not properly reported for each subsequent violation that occurs
34	34	after an initial violation by the employer.
35	35	(d) In determining the amount of a penalty under Subsection
36	36	(c)(2), the commission shall consider:
37	37	(1) the seriousness of the violation, including the
38	38	nature, circumstances, consequences, extent, and gravity of the
39	39	violation;
40	40	(2) any history of previous violations by the
41	41	construction employer;
42	42	(3) the demonstrated good faith of the construction
43	43	employer, including actions taken to rectify the consequences of
44	44	the violation;
45	45	(4) the amount of a penalty necessary to deter future
46	46	violations; and
47	47	(5) any other matter that justice may require.
48	48	(e) Based on the criteria listed in Subsection (d), the
49	49	commission by rule shall adopt a schedule of penalties for a
50	50	violation described by Subsection (c)(2) to ensure that the amount
51	51	of a penalty imposed is appropriate to the violation.
52	52	(f) For a construction employer's initial violation of this
53	53	section, the commission shall assess a penalty against the employer
54	54	as provided by Subsection (c)(1) for each violation determined by
55	55	the commission to have occurred, regardless of the reporting period
56	56	in which the violation occurred.
57	57	(g) An unpaid penalty assessed under this section applies to
58	58	a successor business entity that:
59	59	(1) has one or more owners who jointly control at least
60	60	50 percent of the:
61	61	(A) original employer; and
62	62	(B) successor business entity; and
63	63	(2) is engaged in the same or a similar business
64	64	activity as the original employer.
65	65	(h) Except as provided by Subsection (g), the employer of an
66	66	employee who is not properly reported is the only person liable for
67	67	a penalty assessed under this section.
68	68	Sec. 213.027. APPEAL REGARDING CONSTRUCTION EMPLOYER
69	69	REQUIREMENT TO REPORT EMPLOYEES. (a) In this section,
70	70	"construction employer" has the meaning assigned by Section
71	71	213.026.
72	72	(b) A determination that a construction employer has
73	73	violated Section 213.026 and any penalty assessed for the violation
74	74	may be reviewed and appealed in the same manner as a disputed claim
75	75	under Subchapters C, D, and E, Chapter 212.
76	76	(c) In ruling on an appeal, the facts and circumstances
77	77	supporting the construction employer's appeal must be considered,
78	78	including:
79	79	(1) the contents of any written contract between the
80	80	construction employer and the individual whose employment status
81	81	was not properly reported;
82	82	(2) documentation that the individual represents that
83	83	the individual is an independent contractor;
84	84	(3) an Internal Revenue Service Form W-9 pertaining to
85	85	the individual or a similar form providing the same information as
86	86	that form;
87	87	(4) an Internal Revenue Service Form 1099, or similar
88	88	form issued by, or that meets the compliance guidelines of, the
89	89	Internal Revenue Service, on which the construction employer has
90	90	reported the amount paid to the individual and that was filed in
91	91	accordance with Internal Revenue Service requirements;
92	92	(5) whether the individual is not prohibited from
93	93	hiring employees;
94	94	(6) whether the individual has a substantial
95	95	investment in, and is required to furnish, necessary equipment;
96	96	(7) whether the individual is free to perform services
97	97	for others;
98	98	(8) whether the individual has provided evidence of
99	99	any insurance for the individual's business activity;
100	100	(9) the construction employer's need to control the
101	101	work of the individual if:
102	102	(A) customary to the type of work being
103	103	performed; or
104	104	(B) required by a general contractor or
105	105	construction project owner in order that the general contractor or
106	106	owner may maintain specific control and direction of the worksite
107	107	or the flow of work being performed; or
108	108	(10) whether the failure to properly report the
109	109	employment status was intentional.
110	110	SECTION 2. Section 301.023, Labor Code, is amended to read
111	111	as follows:
112	112	Sec. 301.023. COMPLAINTS AGAINST COMMISSION. (a) The
113	113	commission shall maintain a file on each written complaint filed
114	114	with the commission and each complaint received by telephone or
115	115	submitted through the commission's Internet website. The file must
116	116	include:
117	117	(1) the name of the person who filed the complaint, if
118	118	available;
119	119	(2) the date the complaint is received by the
120	120	commission;
121	121	(3) the subject matter of the complaint;
122	122	(4) the name of each person contacted in relation to
123	123	the complaint;
124	124	(5) a summary of the results of the review or
125	125	investigation of the complaint; and
126	126	(6) an explanation of the reason the file was closed,
127	127	if the commission closed the file without taking action other than
128	128	to investigate the complaint.
129	129	(b) The commission shall provide to the person filing the
130	130	complaint, if the person's name and contact information are
131	131	available, and to each person who is a subject of the complaint a
132	132	copy of the commission's policies and procedures relating to
133	133	complaint investigation and resolution.
134	134	(c) The commission, at least quarterly until final
135	135	disposition of the complaint, shall notify the person filing the
136	136	complaint, if the person's name and contact information are
137	137	available, and each person who is a subject of the complaint of the
138	138	status of the investigation unless the notice would jeopardize an
139	139	undercover investigation.
140	140	SECTION 3. Subchapter D, Chapter 301, Labor Code, is
141	141	amended by adding Section 301.0612 to read as follows:
142	142	Sec. 301.0612. DUTIES REGARDING CONSTRUCTION INDUSTRY. (a)
143	143	It is the policy of this state that each worker in the construction
144	144	industry must be properly classified as an employee or independent
145	145	contractor.
146	146	(b) The commission shall review its policies and procedures
147	147	for the enforcement of Subtitle A and any commission rule regarding
148	148	the construction industry. The commission shall adopt rules and
149	149	procedures to encourage and enforce the proper classification of
150	150	workers in the construction industry as employees or independent
151	151	contractors.
152	152	(c) As soon as practicable after the end of each fiscal
153	153	year, the commission shall submit a report to the governor and the
154	154	legislature regarding the efforts of the commission to ensure the
155	155	proper classification of workers in the construction industry. The
156	156	report must include with respect to the construction industry:
157	157	(1) the number of investigated complaints by the
158	158	commission and any findings; and
159	159	(2) the amount of unemployment taxes, interest, and
160	160	administrative penalties collected as a result of enforcement
161	161	actions taken under Chapter 213.
162	162	(d) The report under Subsection (c) may not include
163	163	identifying information about a person subject to this title or a
164	164	complainant.
165	165	SECTION 4. Section 213.026, Labor Code, as added by this
166	166	Act, applies only to conduct that occurs on or after the effective
167	167	date of this Act. Conduct that occurs before the effective date of
168	168	this Act is governed by the law in effect immediately before the
169	169	effective date of this Act, and the former law is continued in
170	170	effect for that purpose.
171	171	SECTION 5. The Texas Workforce Commission shall submit the
172	172	first report required by Section 301.0612, Labor Code, as added by
173	173	this Act, not later than December 1, 2014.
174	174	SECTION 6. This Act takes effect January 1, 2014.