83R7515 KSD-F
By: Watson S.B. No. 738
A BILL TO BE ENTITLED
AN ACT
relating to the establishment and administration of the Texas
Essential Workers Program; imposing fees.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle B, Title 4, Labor Code, is amended by
adding Chapter 316 to read as follows:
CHAPTER 316. TEXAS ESSENTIAL WORKERS PROGRAM
Sec. 316.001. PURPOSE. The purpose of this chapter is to
develop and establish, in collaboration with the federal
government, a Texas Essential Workers Program to provide an
adequate, legal, and stable workforce for employers in this state
who are experiencing a critical shortage in the availability of
qualified workers, particularly in the industries of ranching,
farming, dairy, food manufacturing, construction, landscaping, and
restaurant and hotel services. The enactment of this chapter
represents an effort to:
(1) recognize the need for additional workers in
workforce shortage industries in this state;
(2) eliminate the exploitation of undocumented
workers in this state;
(3) ensure the payment of taxes by all employers and
employees in this state;
(4) increase national security in and the fiscal
resources of this state; and
(5) improve the overall economy of this state.
Sec. 316.002. DEFINITIONS. In this chapter:
(1) "Department" means the Department of Public Safety
of the State of Texas.
(2) "Eligible employer" means a person who:
(A) employs one or more employees in a workforce
shortage industry in this state; and
(B) for a period of at least 30 days has been
unable to find a sufficient number of qualified workers who are
authorized to be employed in the United States to meet the
employer's workforce needs.
(3) "Foreign worker" means a person who is approved by
the commission as eligible to provide labor to a participating
eligible employer under the program.
(4) "Program" means the Texas Essential Workers
Program established under this chapter.
(5) "Workforce shortage industry" means the
agriculture and dairy industries and other industries in this state
designated by the commission under this chapter as experiencing a
critical shortage in the availability of workers.
Sec. 316.003. RULES. The commission shall adopt rules
necessary to administer this chapter.
Sec. 316.004. PROGRAM ESTABLISHMENT AND ADMINISTRATION.
(a) The commission shall establish and administer the Texas
Essential Workers Program to enable participating eligible
employers to employ qualified foreign workers. In establishing the
program, the commission shall conduct outreach to and solicit
information from employers in this state to determine:
(1) which industries should be designated as workforce
shortage industries under this chapter; and
(2) the number of foreign workers that would be
sufficient to meet the workforce needs of employers in those
industries.
(b) Based on the commission's findings under Subsection
(a), the commission shall petition the federal government for the
temporary admission into this country under H2-A and H2-B visas of a
sufficient number of foreign workers to meet the workforce needs of
eligible employers in this state.
(c) As a part of the program, the commission shall:
(1) establish a system for the recruitment and
referral of local workers for available workforce shortage industry
jobs in this state; and
(2) require participating eligible employers to
attempt to hire employees using that system before hiring foreign
workers.
(d) To the extent permitted by federal law, the commission,
the governor, and the secretary of state may jointly enter into
agreements between this state and foreign countries to facilitate
the recruitment and selection of eligible foreign workers for
participation in the program and the approval for participation in
the program of the workers by participating eligible employers.
The commission shall:
(1) prescribe eligibility criteria for any person
recruiting foreign workers under the program; and
(2) maintain a list of recruiters approved by the
commission as satisfying that criteria.
Sec. 316.005. REQUIREMENTS FOR PARTICIPATING ELIGIBLE
EMPLOYERS. (a) To participate in the program, an eligible employer
must:
(1) submit to the commission:
(A) an application, in the form and manner
prescribed by the commission; and
(B) a signed, sworn affidavit attesting that
during the 30-day period preceding the date of the employer's
application, the employer was unable to find a sufficient number of
qualified workers who are authorized to be employed in the United
States to meet the employer's workforce needs; and
(2) pay a fee in the amount prescribed by the
commission.
(b) The application prescribed by the commission under
Subsection (a) must require the employer to provide:
(1) the employer's name, address, federal income tax
identification number, and industry;
(2) a detailed description of:
(A) the workforce shortage the employer is
experiencing; and
(B) the measures the employer has taken to
identify and recruit local workers equipped with the skills
necessary to meet the employer's workforce needs; and
(3) any other information the commission considers
appropriate.
(c) The commission shall review an employer's application
and, not later than the 30th day after the date the commission
receives the application, notify the employer regarding whether the
commission has approved the employer's application for
participation in the program.
(d) On receipt of notice from the commission that the
commission has approved the employer's application, a
participating eligible employer, subject to any limitations or
requirements prescribed by this chapter or rules adopted under this
chapter, may:
(1) recruit foreign workers at any United States
consulate; and
(2) enter into employment contracts for the temporary
employment of foreign workers.
(e) An employment contract between a participating eligible
employer and a foreign worker must provide that the worker will be
employed for at least three-fourths of each work day during the
contract period.
(f) Each participating employer who employs a foreign
worker under the program shall:
(1) provide the worker a copy of the employment
contract between the employer and the worker in the worker's native
language;
(2) pay the worker at least twice each month;
(3) pay wages to the worker that are in compliance with
the federal Immigration Reform and Control Act of 1986 (8 U.S.C.
Section 1101 et seq.);
(4) provide to the worker, without charge:
(A) housing that meets safety and health
standards established by federal law;
(B) transportation between the worker's local
housing and the worksite;
(C) workers' compensation coverage; and
(D) all tools, supplies, and equipment required
to perform the worker's assigned duties;
(5) provide to the worker:
(A) three low-cost meals each day, the cost of
which must be disclosed in the worker's employment contract; or
(B) free cooking and kitchen facilities;
(6) make available to the worker English as a second
language classes;
(7) after the expiration of half of the worker's
employment contract period, promptly reimburse the worker for any
costs incurred by the worker for transportation and subsistence
from the site of recruitment to the employer's place of employment;
(8) after the expiration of the worker's employment
contract, promptly pay for the costs of return transportation and
subsistence to the site of the worker's recruitment; and
(9) provide any other employees of the employer who
perform the same job as the foreign worker with the same benefits,
wages, and working conditions as the employer provides the foreign
worker.
(g) The commission may inspect housing described by
Subsection (f)(4)(A).
Sec. 316.006. FOREIGN WORKER APPLICATION. The commission
shall prescribe the form and content of an application to be used by
any person seeking to participate in the program as a foreign
worker. The application must require the applicant to provide the
applicant's name, photograph, fingerprints, and any other
information the commission considers appropriate.
Sec. 316.007. PARTICIPATION REQUIREMENTS FOR FOREIGN
WORKER. (a) To be eligible to participate in the program as a
foreign worker, a person must:
(1) complete a foreign worker application at the
United States consulate in the person's country of origin;
(2) be approved by the commission after passing:
(A) a criminal history record information check
conducted by the appropriate authorities in the person's country of
origin; and
(B) a federal and state criminal history record
information check conducted by the department under Section
316.009; and
(3) have been issued a current H2-A or H2-B visa.
(b) For purposes of Subsection (a)(2)(A), the employer
seeking to hire the person must obtain a copy of the results of the
criminal history record information check conducted by the
appropriate authorities in the person's country of origin and
submit the results to the commission. The employer shall pay any
fee charged for obtaining that information.
(c) A person may not participate in the program as a foreign
worker if the person has been convicted of:
(1) any crime in the United States; or
(2) a crime in the foreign worker's country of origin
that would have been classified as a Class A misdemeanor or a felony
in this state.
(d) A participating foreign worker may not file for or
receive unemployment insurance benefits.
Sec. 316.008. FOREIGN WORKER FAMILY MEMBERS. (a) A family
member of a foreign worker may participate in the program only if
the family member meets the requirements of Section 316.007.
(b) A foreign worker may not transport a family member into
this state unless the family member has proper federal
authorization.
Sec. 316.009. CRIMINAL HISTORY RECORD INFORMATION CHECK.
The department shall conduct a state and federal criminal history
record information check to determine the eligibility of each
person who applies to participate in the program as a foreign
worker. The employer seeking to employ the person shall be charged
a fee for the criminal history record information check.
Sec. 316.010. ISSUANCE OF TEMPORARY WORKER LEGAL
IDENTIFICATION CARDS TO FOREIGN WORKERS BY DEPARTMENT. (a) The
department shall issue to each foreign worker a temporary worker
legal identification card under this section. The identification
card must:
(1) be non-forgeable;
(2) indicate the date on which the foreign worker's
authorized presence in this state expires; and
(3) meet any other requirements prescribed by federal
law.
(b) The department shall prescribe the fee for the issuance
of an identification card under this section. The fee shall be paid
by the participating eligible employer who employs the foreign
worker.
(c) The identification card shall be issued to the
participating eligible employer employing the foreign worker who
shall then provide the card to the foreign worker. A participating
employer shall return the identification card to the department as
soon as practicable after:
(1) the date the foreign worker's approved presence in
this state expires; or
(2) the date the employer revokes the identification
card from the worker under Subsection (d).
(d) A participating eligible employer shall revoke the
identification card of a foreign worker employed by the employer
if:
(1) the foreign worker is absent from work without
approval for more than 13 consecutive days;
(2) the employer is unable to locate the foreign
worker for more than six days;
(3) the employer determines that the foreign worker
has traveled outside of this state;
(4) the foreign worker is convicted of a crime in this
state;
(5) the foreign worker is no longer employed by the
employer; or
(6) the foreign worker gives, sells, or lends the
worker's identification card to another person for the purpose of
obtaining employment.
(e) A participating eligible employer who fails to return an
identification card to the department as required by Subsection (c)
is ineligible to participate in the program.
(f) The department shall maintain a database of foreign
workers to whom the department has issued an identification card
under this section.
(g) Any essential documents provided to a foreign worker by
the department in connection with an identification card under this
section must be provided in the foreign worker's native language.
(h) An identification card issued under this section is
valid for two years. The department shall adopt a procedure for the
renewal of an identification card issued under this section.
(i) The department, in consultation with the commission,
shall adopt rules for the administration of this section.
SECTION 2. (a) The Texas Workforce Commission and the
Department of Public Safety of the State of Texas may implement
Chapter 316, Labor Code, as added by this Act, only if the federal
government authorizes this state to implement an essential workers
program or similar program.
(b) If the federal government authorizes this state to
implement an essential workers program or similar program, the
Texas Workforce Commission and the Department of Public Safety of
the State of Texas, as soon as practicable after the date the
program is authorized, shall adopt rules for the administration of
Chapter 316, Labor Code, as added by this Act.
(c) The attorney general shall monitor federal legislation
for the purposes of this section.
SECTION 3. This Act takes effect September 1, 2013.