By: Arévalo H.B. No. 391
A BILL TO BE ENTITLED
AN ACT
relating to employee rights and protections; providing a civil
penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. SHORT TITLE, PREAMBLE, AND FINDINGS
SECTION 1.01. SHORT TITLE. This Act shall be known as the
Texas Fair Shot Act.
SECTION 1.02. PREAMBLE. In order to improve the lives of
all Texans, the Legislature should pass significant legislation
that promises a fair shot for everyone. Advancing economic
opportunity and protecting the rights of workers includes
increasing the minimum wage, securing paid family leave for all
Texans, fighting against wage theft, and addressing the glaring pay
gap between male and female workers in Texas.
SECTION 1.03. FINDINGS. Texas' minimum wage law is tied to
the federal minimum wage. The current federal minimum wage of $7.25
per hour is not enough pay for Texans to provide for their families.
In the absence of an increased federal minimum wage, it is the
responsibility of the Texas Legislature to ensure that all Texans
earn a livable wage. A wage of $15 per hour can help guarantee if a
Texan is working a full-time job, he or she will be able to afford
rent, food, child care, health care, and other critical
necessities. With more money in their pockets, Texas workers will
spend more on goods and services, generating greater economic
activity for all.
Eight out of every ten workers in Texas has no access to paid
family leave. Without it, moms and dads are forced to go back to
work too soon after the birth of their child. Having to choose
between providing for one's family and spending time with a newborn
is a choice no Texan should have to make. The Legislature finds
that ensuring all Texas workers have at least eight weeks of paid
family leave upon the birth, adoption, or placement of a child will
help individual Texans live more fulfilling lives, encourage them
to stay in their job, and provide for more stability in the Texas
economy overall.
In Texas, it is not uncommon for workers, particularly
low-income workers, to be robbed of their wages. Whether it is
through misclassifying workers, failing to reimburse workers for
overtime work, or altogether not paying employees, the Texas
Legislature cannot allow employers to continue committing wage
theft. It is the responsibility of the Texas Legislature to ensure
that Texas workers are being justly paid for the work they are
doing.
All Texas workers should be treated equally when it comes to
pay. Yet, women are paid only 79 cents for every dollar a man earns.
That figure is worse for women of color: 59 cents for Black women
and 44 cents for Hispanic women. The legislature should ensure that
female workers are not experiencing discrimination in their wages,
and pursue policies that combat discrimination and openness so that
Texans who working hard are properly and equally valued for their
work.
ARTICLE 2. DISCRIMINATION IN PAYMENT OF COMPENSATION
SECTION 2.01. Subchapter C, Chapter 21, Labor Code, is
amended by adding Section 21.1061 to read as follows:
Sec. 21.1061. SEX DISCRIMINATION IN COMPENSATION. For
purposes of this chapter, a violation of Chapter 24 is considered to
be discrimination on the basis of sex.
SECTION 2.02. Section 21.202(a), Labor Code, is amended to
read as follows:
(a) A complaint under this subchapter must be filed not
later than the 180th day after the date the alleged unlawful
employment practice occurred. With respect to an allegation of
discrimination in payment of compensation in violation of this
chapter, an unlawful employment practice occurs each time:
(1) a discriminatory compensation decision or other
practice is adopted;
(2) an individual becomes subject to a discriminatory
compensation decision or other practice; or
(3) an individual is adversely affected by application
of a discriminatory compensation decision or other practice,
including each time wages affected wholly or partly by the decision
or other practice are paid.
SECTION 2.03. Section 21.258, Labor Code, is amended by
adding Subsection (d) to read as follows:
(d) Liability may accrue, and an aggrieved person may obtain
relief as provided by this subchapter, including recovery of back
pay for the period allowed under this section, if the unlawful
employment practices that have occurred during the period for
filing a complaint are similar or related to unlawful employment
practices with regard to discrimination in payment of compensation
that occurred outside the period for filing a complaint.
SECTION 2.04. Subtitle A, Title 2, Labor Code, is amended by
adding Chapter 24 to read as follows:
CHAPTER 24. EMPLOYMENT DISCRIMINATION REGARDING COMPENSATION
Sec. 24.001. DEFINITIONS. In this chapter:
(1) "Applicant" means a person who has made an oral or
written application with an employer, or has sent a resume or other
correspondence to an employer, indicating an interest in
employment.
(2) "Commission" means the Texas Workforce
Commission.
(3) "Employee" and "employer" have the meanings
assigned by Section 21.002.
(4) "Wages" has the meaning assigned by Section
61.001.
Sec. 24.002. EMPLOYER INQUIRIES INTO AND CONSIDERATION OF
WAGE HISTORY INFORMATION. (a) An employer may not:
(1) include a question regarding an applicant's wage
history information on an employment application form;
(2) inquire into or consider an applicant's wage
history information; or
(3) obtain an applicant's wage history information
from a previous employer of the applicant, unless the wages in that
previous employment position are subject to disclosure under
Chapter 552, Government Code.
(b) Notwithstanding Subsection (a), an applicant may
provide written authorization to a prospective employer to confirm
the applicant's wage history, including benefits or other
compensation, only after the prospective employer has made a
written offer of employment to the applicant that includes the
applicant's wage and benefit information for the position.
Sec. 24.003. PROHIBITION AGAINST DISCRIMINATION IN WAGES.
(a) For purposes of this section, "business necessity" means an
overriding legitimate business purpose such that the factor relied
upon in determining wage differential effectively fulfills the
business purpose the factor is intended to serve.
(b) An employer commits an unlawful employment practice in
violation of this chapter and Chapter 21 if the employer
discriminates among employees on the basis of sex by paying wages to
an employee at a rate less than the rate at which the employer pays
wages to another employee of the opposite sex for the same or
substantially similar work on jobs, the performance of which
requires equal or substantially similar skill, effort, and
responsibility, and which are performed under similar working
conditions, except where the payment is made under one of the
following factors:
(1) a seniority system;
(2) a merit system;
(3) a system that measures earnings by quantity or
quality of production; or
(4) a differential based on a bona fide factor other
than sex.
(c) A seniority system described by Subsection (b)(1) may
not deduct from the employee's service time any leave that the
employee took under the Family and Medical Leave Act of 1993 (29
U.S.C. Section 2601 et seq.) or other applicable family or medical
leave to which the employee is entitled.
(d) The exception provided by Subsection (b)(4) applies
only if the employer demonstrates that the factor:
(1) is not based on or derived from a differential
based on sex in compensation;
(2) is related to the position in question; and
(3) is consistent with business necessity.
(e) Notwithstanding Subsection (d), the exception provided
by Subsection (b)(4) does not apply if the employee demonstrates
that an alternative business practice exists that would serve the
same business purpose without producing a wage differential.
(f) An employer may not enter into an agreement with an
employee that provides that the employer may pay the employee a wage
at a rate that is in violation of this section.
Sec. 24.004. OTHER PROHIBITED ACTS. (a) An employer
commits an unlawful employment practice in violation of this
chapter and Chapter 21 if the employer:
(1) takes an adverse action or otherwise discriminates
against a person because the person has:
(A) opposed an act or practice made unlawful by
this chapter;
(B) sought to enforce rights protected under this
chapter; or
(C) testified, assisted, or participated in any
manner in an investigation, hearing, or other proceeding to enforce
this chapter; or
(2) discharges or in any other manner discriminates
against, coerces, intimidates, threatens, or interferes with an
employee or other person because the person:
(A) inquired about, disclosed, compared, or
otherwise discussed an employee's wages; or
(B) exercised or enjoyed, or aided or encouraged
another person to exercise or enjoy, any right granted or protected
by this chapter.
(b) This section does not require an employee to disclose
the employee's wages.
Sec. 24.005. NOTICE BY EMPLOYER REQUIRED. Each employer
shall post in conspicuous places on the premises of the employer
where notices to employees and applicants for employment are
customarily posted a notice, prepared or approved by the
commission, setting forth the pertinent provisions of this chapter
and information relating to the enforcement of this chapter.
Sec. 24.006. COMPLAINT; ENFORCEMENT. (a) A person
aggrieved by an unlawful employment practice under this chapter may
file a complaint with the commission. A complaint filed under this
section is subject to Subchapters E and F, Chapter 21.
(b) The commission shall enforce this chapter in accordance
with Chapter 21.
Sec. 24.007. EMPLOYER SELF-EVALUATION; AFFIRMATIVE
DEFENSE. (a) An employer is encouraged to periodically perform a
self-evaluation of the employer's business practices and
compensation to ensure that the employer is in compliance with this
chapter.
(b) In a civil action filed under Subchapter F, Chapter 21,
by a person aggrieved by an unlawful employment practice under this
chapter, it is an affirmative defense to liability for compensatory
or punitive damages under Section 21.2585 that:
(1) the employer performed a self-evaluation of the
employer's business practices and compensation in the three-year
period preceding the date of the conduct that is the basis of the
complaint; and
(2) the employer has in good faith demonstrated that,
following the date of the evaluation under Subdivision (1), the
employer has made reasonable progress toward eliminating
compensation differentials based on sex.
(c) This section does not require an employer to perform a
self-evaluation or subject an employer to any penalty for failing
to perform a self-evaluation.
Sec. 24.008. WAGE RECORDS REQUIREMENT. Each employer shall
compile and maintain for a period of at least three years records
that contain:
(1) the wage paid to each employee; and
(2) the method, system, computations, and other
factors used to establish, adjust, and determine the wage rates
paid to the employee.
SECTION 2.05. The changes in law made by this article apply
only to an unlawful employment practice with regard to
discrimination in payment of compensation that occurs on or after
the effective date of this Act.
ARTICLE 3. CLAIMS FOR UNPAID WAGES
SECTION 3.01. Subchapter B, Chapter 61, Labor Code, is
amended by adding Sections 61.021 and 61.022 to read as follows:
Sec. 61.021. EMPLOYER RETALIATION PROHIBITED; CAUSE OF
ACTION. (a) 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, an employee rights organization, or an attorney;
(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.
(b) An employee who is the subject of an adverse employment
action prohibited under Subsection (a) may bring suit against the
employer, including an action in a district court for appropriate
injunctive relief.
(c) An employee who prevails in a suit brought under this
section:
(1) may recover:
(A) reasonable damages incurred by the employee
as a result of the adverse employment action;
(B) additional damages in an amount equal to the
greater of $1,000 or the amount of actual damages incurred as a
result of the adverse employment action; and
(C) court costs and reasonable attorney's fees
incurred by the employee in the suit; and
(2) is entitled to:
(A) reinstatement to the employee's former
position or a position that is comparable in terms of compensation,
benefits, and other conditions of employment; and
(B) reinstatement of any benefits and seniority
rights lost because of the adverse employment action.
Sec. 61.022. COMPLAINTS. (a) A person who has reason to
believe that an employer has violated Section 61.021 may file a
complaint with the commission.
(b) On receipt of a complaint, the commission shall
investigate and dispose of the complaint in the same manner as a
wage claim under Subchapter D. The commission may incorporate the
investigation into any ongoing investigation of an underlying wage
claim filed by the employee, if applicable.
(c) The commission shall ensure that information regarding
the complaint process is available on the commission's Internet
website.
SECTION 3.02. Section 61.051(c), Labor Code, is amended to
read as follows:
(c) A wage claim must be filed not later than the second
anniversary of [180th day after] the date the wages claimed became
due for payment. The filing [180-day] deadline is a matter of
jurisdiction.
SECTION 3.03. Section 61.053, Labor Code, is amended by
amending Subsection (a) and adding Subsection (a-1) 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.
(a-1) For purposes of Subsection (a), acts that constitute
bad faith by an employer include:
(1) a history of previous violations of this chapter;
(2) failure to pay wages to an employee as required by
this chapter as an act of discrimination or retaliation against the
employee;
(3) failure to pay wages as required by this chapter to
multiple employees at the same time;
(4) failure to pay wages to an employee as required by
this chapter knowing that the failure was a violation of state law;
or
(5) actions showing reckless disregard of the
requirements of this chapter.
SECTION 3.04. Subchapter D, Chapter 61, Labor Code, is
amended by adding Section 61.0531 to read as follows:
Sec. 61.0531. RETALIATION; DAMAGES. (a) If after an
investigation of a complaint under Section 61.022 the commission
examiner, a wage claim appeal tribunal, or the commission
determines that an employer violated Section 61.021(a), the
examiner, tribunal, or commission shall order the employer to pay
to the employee damages in an amount equal to the greater of $1,000
or the amount of wages owed to the employee.
(b) Damages under Subsection (a) are in addition to any
payment of wages ordered under this subchapter.
SECTION 3.05. The heading to Section 61.058, Labor Code, is
amended to read as follows:
Sec. 61.058. HEARING PROCEDURES; PRESUMPTION.
SECTION 3.06. 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 3.07. Not later than March 1, 2018, the Texas
Workforce Commission shall adopt rules necessary to implement
Section 61.022, Labor Code, as added by this article.
SECTION 3.08. Sections 61.021 and 61.022, Labor Code, as
added by this article, apply 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 3.09. Section 61.051, Labor Code, as amended by
this article, applies to a wage claim filed under Subchapter D,
Chapter 61, Labor Code, for wages that become due for payment on or
after June 4, 2017. A wage claim for wages that became due for
payment before that date is governed by the law in effect
immediately before the effective date of this Act, and the former
law is continued in effect for that purpose.
SECTION 3.10. Section 61.053(a), Labor Code, as amended by
this article, and Section 61.0531, Labor Code, as added by this
article, apply 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 3.11. Section 61.058, Labor Code, as amended by
this article, 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.
ARTICLE 4. MINIMUM WAGE
SECTION 4.01. Section 62.051, Labor Code, is amended to
read as follows:
Sec. 62.051. MINIMUM WAGE. Except as provided by Section
62.057, an employer shall pay to each employee not less than the
greater of:
(1) $15.00 an hour; or
(2) the federal minimum wage under Section 6, Fair
Labor Standards Act of 1938 (29 U.S.C. Section 206).
SECTION 4.02. Section 62.151, Labor Code, is repealed.
ARTICLE 5. FAMILY CARE LEAVE
SECTION 5.01. Subtitle D, Title 2, Labor Code, is amended by
adding Chapter 83 to read as follows:
CHAPTER 83. FAMILY CARE LEAVE
Sec. 83.001. DEFINITIONS. In this chapter:
(1) "Child" means a person:
(A) who is a biological, adopted, or foster
child, a stepchild, or a legal ward of an employee; or
(B) for whom the employee stands in loco
parentis.
(2) "Commission" means the Texas Workforce
Commission.
(3) "Employee" means an individual who performs
services for an employer for compensation under an oral or written
contract of hire, whether express or implied. The term does not
include an independent contractor.
(4) "Employer" means a person who employs 10 or more
employees in this state.
Sec. 83.002. FAMILY CARE LEAVE. (a) An employee who has
been employed by an employer for at least six months is eligible for
family care leave for a period of eight weeks due to:
(1) the birth of the employee's child; or
(2) the placement of a child with the employee in
connection with the adoption or foster care of the child by the
employee.
(b) Eligibility for leave under this chapter expires on the
first anniversary of the date of the child's birth or placement with
the employee, as applicable.
Sec. 83.003. INELIGIBILITY OF CERTAIN EMPLOYEES FOR LEAVE.
An employee is not eligible for leave under this chapter with
respect to any day for which the employee receives:
(1) benefits under a law providing unemployment
compensation; or
(2) disability insurance benefits under any state or
federal law.
Sec. 83.004. AMOUNT OF PAY DURING LEAVE. (a) An employee
who is eligible for leave under this chapter is entitled to an
amount paid by the employer equal to the salary the employee would
have been paid if the employee had worked during that pay period.
(b) If the employee takes less than a full pay period of
leave under this chapter, the employer shall prorate the amount of
pay for each day of leave the employee takes.
Sec. 83.005. FORESEEABILITY OF LEAVE; NOTICE TO EMPLOYER.
(a) An employee who intends to take leave under this chapter shall,
before the 30th day preceding the date the leave is to begin, notify
the employer in writing of the employee's intention to take the
leave. If the date of the birth or placement of the child requires
that the leave begin in less than 30 days, the employee shall
provide notice to the employer as is practicable.
(b) An employee may take leave under this chapter
intermittently if the employee notifies the employer in writing.
(c) If an employee gives notice of intermittent leave under
Subsection (b), the employer may require the employee to transfer
temporarily to an available alternative position offered by the
employer for which the employee is qualified and that:
(1) has equivalent pay and benefits; and
(2) better accommodates recurring periods of leave
than the regular employment position of the employee.
(d) On notice by an employee under Subsection (a), an
employee may take leave under this chapter on a reduced leave
schedule. Work performed by an employee on a reduced leave schedule
does not reduce the total amount of leave to which the employee is
entitled.
Sec. 83.006. SUBSTITUTION OF OTHER PAID LEAVE PROHIBITED.
An employer may not require an employee to substitute accrued paid
vacation leave, personal leave, medical or sick leave, or other
leave for leave provided under this chapter.
Sec. 83.007. LEAVE NOT CONCURRENT WITH FEDERAL FAMILY LEAVE
ACT. An employee who is entitled to leave under the federal Family
and Medical Leave Act of 1993 (29 U.S.C. Section 2601 et seq.) is
entitled to take leave under that law in addition to any leave taken
under this chapter.
Sec. 83.008. NOTICE BY EMPLOYER REQUIRED; CIVIL PENALTY.
(a) Each employer shall post in conspicuous places on the premises
of the employer where notices to employees and applicants for
employment are customarily posted a notice, prepared or approved by
the commission, setting forth the pertinent provisions of this
chapter and information relating to the enforcement of this
chapter.
(b) An employer who wilfully violates this section is liable
for a civil penalty not to exceed $100 for each violation. The
attorney general may bring an action to collect a civil penalty
under this section. Civil penalties assessed under this section
shall be deposited in the general revenue fund.
Sec. 83.009. EMPLOYMENT AND BENEFITS PROTECTION;
EXCEPTION. (a) An employee who takes leave under this chapter is
entitled, on return from the leave, to reinstatement in the former
position of employment or an equivalent position of employment with
equivalent employment benefits, pay, and other terms and conditions
of employment.
(b) Leave taken under this chapter may not result in the
loss of any employment benefit accrued before the date on which the
leave began.
(c) This section does not entitle an employee who is
reinstated in employment to:
(1) the accrual of seniority or other employment
benefits during any period of leave; or
(2) any right, benefit, or position of employment
other than any right, benefit, or position to which the employee
would have been entitled had the employee not taken the leave.
(d) This section does not prohibit an employer from
requiring an employee on leave under this chapter to report
periodically to the employer on the status and intention of the
employee to return to work.
Sec. 83.010. COMMISSION POWERS AND DUTIES. The commission
shall adopt rules as necessary to implement this chapter.
Sec. 83.011. PROHIBITED ACTS. (a) An employer may not
interfere with, restrain, or deny the exercise of or the attempt to
exercise any right provided under this chapter.
(b) An employer may not discharge or otherwise discriminate
against an individual for opposing a practice made unlawful by this
chapter.
(c) A person may not discharge or otherwise discriminate
against an individual because that individual has:
(1) filed a charge, or instituted or caused to be
instituted a proceeding, under or related to this chapter;
(2) given, or is about to give, any information in
connection with an inquiry or proceeding relating to a right
provided under this chapter; or
(3) testified, or is about to testify, in an inquiry or
proceeding relating to a right provided under this chapter.
Sec. 83.012. ENFORCEMENT. (a) An employer who violates
Section 83.011 is liable to an affected individual for damages
equal to the amount of:
(1) any wages, salary, employment benefits, or other
compensation denied or lost to the individual by reason of the
violation or, if wages, salary, employment benefits, or other
compensation has not been denied or lost, any actual monetary
losses sustained by the individual as a direct result of the
violation, including the cost of providing necessary care, not to
exceed an amount equal to the individual's wages or salary for 12
weeks; and
(2) interest on the amount determined under
Subdivision (1) computed at the prevailing rate of interest on
judgments.
(b) The employer is also liable for equitable relief as
appropriate, including employment, reinstatement, and promotion.
(c) An action to recover damages or equitable relief under
this section may be maintained by any one or more individuals for
and on behalf of those individuals.
(d) In addition to any judgment awarded to the plaintiff,
the court may require the defendant to pay reasonable attorney's
fees, reasonable expert witness fees, and other costs.
SECTION 5.02. (a) This article applies only to a
suspension, termination, or other adverse employment action that is
taken by an employer against an employee because of an employee
absence authorized under Chapter 83, Labor Code, as added by this
article, that occurs on or after March 1, 2018. Action taken by an
employer against an employee for an employee absence occurring
before March 1, 2018, is governed by the law in effect immediately
before the effective date of this Act, and the former law is
continued in effect for that purpose.
(b) An employee is not entitled to take leave as provided by
Chapter 83, Labor Code, as added by this article, before March 1,
2018.
(c) The Texas Workforce Commission shall adopt rules and
prescribe notices as required by Chapter 83, Labor Code, as added by
this article, not later than January 1, 2018.
ARTICLE 6. EFFECTIVE DATE
SECTION 6.01. This Act takes effect December 1, 2017.