83R923 MAW-F
By: Rodriguez S.B. No. 1743
A BILL TO BE ENTITLED
AN ACT
relating to prohibiting employer retaliation against employees who
seek recovery of unpaid wages and procedures in wage claim hearings
conducted by the Texas Workforce Commission; providing
administrative penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 61, Labor Code, is amended by adding
Subchapter G to read as follows:
SUBCHAPTER G. RETALIATION PROHIBITED FOR ACTION TO RECOVER UNPAID
WAGES
Sec. 61.101. EMPLOYER RETALIATION PROHIBITED. An employer
may not suspend or terminate the employment of, or in any other
manner discipline, discriminate against, or retaliate against an
employee who in good faith seeks to recover wages owed to the
employee by:
(1) filing a complaint with a governmental entity;
(2) seeking or accepting the assistance of a nonprofit
organization or an employee rights organization;
(3) exercising or attempting to exercise a right or
remedy granted to the employee by a contract, local ordinance or
order, or federal or state law; or
(4) filing a wage claim under Subchapter D.
Sec. 61.102. CAUSE OF ACTION; PRESUMPTION. (a) An employee
who is the subject of an adverse employment action prohibited under
Section 61.101 may bring suit against the employer.
(b) It is a rebuttable presumption that the employee's
employment was suspended or terminated or the employee was
otherwise subjected to discipline, discrimination, or retaliation
in violation of Section 61.101 if the adverse employment action was
taken on or before the 90th day after the date the employee takes an
action described by Section 61.101 for recovery of wages owed by the
employer.
(c) A presumption under Subsection (b) may be rebutted only
by clear and convincing evidence that the adverse employment action
was not taken for a reason prohibited under Section 61.101.
Sec. 61.103. REMEDIES. (a) An employee who prevails in a
suit brought under Section 61.102 may recover:
(1) reasonable damages incurred by the employee as a
result of the adverse employment action;
(2) additional damages in an amount equal to the
average wages the employee earns during a two-week period plus
$500; and
(3) court costs and reasonable attorney's fees
incurred by the employee in the suit.
(b) In addition to amounts recovered under Subsection (a),
an employee who prevails in a suit under Section 61.102 is entitled
to:
(1) reinstatement to the employee's former position or
a position that is comparable in terms of compensation, benefits,
and other conditions of employment; and
(2) reinstatement of any benefits and seniority rights
lost because of the suspension, termination, or other adverse
employment action.
Sec. 61.104. INJUNCTION. A person aggrieved by a violation
of Section 61.101 may bring an action in a district court for
appropriate injunctive relief.
Sec. 61.105. COMPLAINTS. (a) A person who has reason to
believe that an employer has violated Section 61.101 may file a
complaint with the commission.
(b) On receipt of a complaint, the commission shall
investigate the complaint and take appropriate enforcement action.
(c) The commission shall:
(1) adopt rules for filing a complaint under this
section;
(2) develop a simple standardized form for filing a
complaint; and
(3) ensure that the form and information regarding the
complaint process are available on the commission's Internet
website.
SECTION 2. Section 61.052(b), Labor Code, is amended to
read as follows:
(b) If a commission examiner imposes an administrative
penalty under Section 61.053 or 61.0531, the preliminary wage
determination order must include an order for payment of the
penalty.
SECTION 3. Section 61.053(a), Labor Code, is amended to
read as follows:
(a) If the commission examiner, a wage claim appeal
tribunal, or the commission determines that an employer acted in
bad faith in not paying wages as required by this chapter, the
examiner, tribunal, or commission, in addition to ordering the
payment of the wages, shall [may] assess an administrative penalty
against the employer.
SECTION 4. Subchapter D, Chapter 61, Labor Code, is amended
by adding Section 61.0531 to read as follows:
Sec. 61.0531. RETALIATION; ADMINISTRATIVE PENALTY. (a) If
after an investigation of a complaint under Section 61.105 the
commission examiner, a wage claim appeal tribunal, or the
commission determines that an employer violated Section 61.101, the
examiner, tribunal, or commission shall assess an administrative
penalty against the employer.
(b) The amount of an administrative penalty assessed under
this section is $1,000 for each violation.
SECTION 5. The heading to Section 61.058, Labor Code, is
amended to read as follows:
Sec. 61.058. HEARING PROCEDURES; PRESUMPTION.
SECTION 6. Section 61.058, Labor Code, is amended by
amending Subsection (a) and adding Subsections (c) and (d) to read
as follows:
(a) Except as provided by Subsections (c) and (d), a [A]
hearing conducted under this subchapter is subject to the rules and
hearings procedures used by the commission in the determination of
a claim for unemployment compensation benefits.
(c) In a hearing under this subchapter, an employer's
failure to comply with Section 62.003 or the recordkeeping
requirements of the Fair Labor Standards Act of 1938 (29 U.S.C.
Section 201 et seq.) applicable to an employee creates a rebuttable
presumption that the employee's hours worked, pay rate, and
earnings are equal to those amounts provided in the employee's
testimony or records presented at the hearing.
(d) A presumption under Subsection (c) may be rebutted by
clear and convincing evidence provided by the employer of the
employee's hours worked, pay rate, and earnings.
SECTION 7. Not later than December 1, 2013, the Texas
Workforce Commission shall adopt rules necessary to implement
Section 61.105, Labor Code, as added by this Act.
SECTION 8. Section 61.0531, Labor Code, as added by this
Act, applies only to conduct that occurs on or after the effective
date of this Act. Conduct that occurs before that date is governed
by the law in effect on the date the conduct occurred, and the
former law is continued in effect for that purpose.
SECTION 9. Section 61.058, Labor Code, as amended by this
Act, applies only to a hearing that commences on or after the
effective date of this Act. A hearing that commences before that
date is governed by the law in effect on the date the hearing
commenced, and the former law is continued in effect for that
purpose.
SECTION 10. Subchapter G, Chapter 61, Labor Code, as added
by this Act, applies only to an adverse employment action that is
taken by an employer against an employee on or after the effective
date of this Act. An adverse employment action taken before that
date is governed by the law in effect on the date the action was
taken, and the former law is continued in effect for that purpose.
SECTION 11. This Act takes effect September 1, 2013.