88R10271 SCP-F
By: Bryant H.B. No. 4394
A BILL TO BE ENTITLED
AN ACT
relating to increasing warehouse worker protections.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 2, Labor Code, is amended by adding
Subtitle F to read as follows:
SUBTITLE F. WORKER PROTECTIONS
CHAPTER 96. WAREHOUSE WORKER PROTECTIONS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 96.001. DEFINITIONS. In this chapter:
(1) "Adverse employment action" includes termination,
demotion, unfavorable reassignment, failure to promote,
disciplinary action, reduction in compensation, and constructive
discharge.
(2) "Aggregated work speed data" means employee work
speed data that an employer has combined or collected together in
summary or other form such that the data cannot be identified with
any individual.
(3) "Commission" means the Texas Workforce
Commission.
(4) "Controlled group of corporations" means any group
through which one or more chains of corporations are connected
through stock ownership with a common parent corporation if:
(A) stock possessing at least 50 percent of the
total combined voting power of all classes of stock entitled to vote
or at least 50 percent of the total value of shares of all classes of
stock of each of the corporations, except the common parent
corporation, is owned by one or more of the other corporations; and
(B) the common parent corporation owns stock
possessing at least 50 percent of the total combined voting power of
all classes of stock entitled to vote or at least 50 percent of the
total value of shares of all classes of stock of at least one of the
other corporations, excluding, in computing such voting power or
value, stock owned directly by such other corporations.
(5) "Defined time period" means any time interval
equal to or less than the duration of an employee's shift.
(6) "Employee" means an individual who is employed by
an employer for compensation. The term does not include an
independent contractor.
(7) "Employee work speed data" means information an
employer collects, stores, analyzes, or interprets relating to an
employee's performance of a quota, including quantities of tasks
performed, quantities of items or materials handled or produced,
rates or speeds of tasks performed, measurements or metrics of
employee performance in relation to a quota, and time categorized
as performing tasks or not performing tasks.
(8) "Employer":
(A) means a person who directly or indirectly, or
through an agent or any other person, including through the
services of a third-party employer, temporary services, or staffing
agency, independent contractor, or any similar entity, at any time
during the preceding 12 months, employs or exercises control over
the wages, hours, or working conditions of:
(i) 100 or more workers, including workers
employed by a member of a controlled group of corporations of which
the person is a member, at a single warehouse distribution center;
or
(ii) 500 or more workers, including workers
employed by a member of a controlled group of corporations of which
the person is a member, at one or more warehouse distribution
centers in this state; and
(B) includes any agent or other person, and any
member of, a controlled group of corporations of which a person
described by Paragraph (A) is a member.
(9) "Quota" means a work standard by which:
(A) an employee is assigned or required to
perform at a specified productivity speed or complete a quantified
number of tasks within a defined time period; or
(B) an employee's actions are categorized
between time performing tasks and not performing tasks and a
performance standard or recommendation is applied to the employee's
actions.
(10) "Warehouse distribution center" means an entity
described by any of the following North American Industry
Classification System (NAICS) codes as they exist on September 1,
2023:
(A) 493 for warehousing and storage;
(B) 423 for merchant wholesalers, durable goods;
(C) 424 for merchant wholesalers, nondurable
goods;
(D) 454110 for electronic shopping and
mail-order houses; or
(E) 492110 for couriers and express delivery
services.
Sec. 96.002. APPLICABILITY TO EMPLOYEES. This chapter
applies only to an employee who:
(1) works at a warehouse distribution center in a
non-administrative position; and
(2) is subject to a quota described by Section 96.051.
Sec. 96.003. RULES. The commission shall adopt rules as
necessary for the administration of this chapter.
SUBCHAPTER B. EMPLOYER REQUIREMENTS
Sec. 96.051. QUOTAS. (a) An employer shall provide to a
new employee, not later than the 30th day after the date the
employee is hired, a written description of:
(1) each quota to which the employee is subject,
including the number of tasks to be performed or materials to be
produced or handled within the defined time period; and
(2) any potential adverse employment action that could
result from failure to meet a quota described by Subdivision (1).
(b) For each change to a quota that occurs after the date an
employee was hired, the employer shall provide an updated written
description of each changed quota to which the employee is subject
not later than the second business day before the date the changed
quota takes effect.
(c) An employer shall provide an employee with notice of the
applicable quota for the employee before an employer takes an
adverse employment action against an employee in relation to the
employee's performance of a quota.
(d) An employee may not be required to meet a quota that
prevents compliance with meal or rest periods or use of bathroom
facilities required by law, including reasonable travel time to and
from bathroom facilities.
(e) An employer may not take adverse employment action
against an employee for failure to meet a quota that:
(1) does not allow an employee to comply with meal and
rest periods; or
(2) has not been disclosed to the employee under this
section.
(f) Paid and unpaid breaks may not be considered productive
time for the purpose of any quota or monitoring system unless the
employee is required to remain on call during the paid or unpaid
break.
Sec. 96.052. POSTING OF WORKPLACE NOTICE. An employer
shall post a public notice in the workplace informing employees of
their rights under this chapter, including:
(1) the amount of work in a prescribed time that
constitutes a permissible quota; and
(2) the right of an employee to:
(A) request quota and speed data information; and
(B) make a complaint to an applicable state
authority regarding a violation of an employee's rights under this
chapter.
Sec. 96.053. RECORDKEEPING. (a) An employer that uses
quotas or monitors work speed data shall maintain records of:
(1) the individual work speed data of each employee;
(2) the aggregated work speed data for similar
employees at the same establishment; and
(3) a written description of the quotas each employee
was provided under Section 96.051.
(b) The records described under Subsection (a) must be
maintained for the duration of the employee's employment.
(c) On an employee's separation from employment, the
employer shall retain the employer's records regarding the employee
for the six-month period preceding the date of the employee's
separation. The employer must retain the records for not less than
three years after the date of the employee's separation.
(d) An employer is not required to maintain records under
this section if the employer does not use quotas or monitor work
speed data.
Sec. 96.054. ACCESS TO RECORDS. (a) On request by the
commission, an employer shall provide a copy of the records
described by Section 96.053(a) to the commission.
(b) On request, a current employee of an employer is
entitled to receive from the employer:
(1) a written description of each quota to which the
employee is subject;
(2) a copy of the employee's work speed data; and
(3) a copy of the preceding six months of aggregated
work speed data for similar employees at the same workplace.
(c) Not later than the third anniversary of the date of an
employee's separation from employment with an employer, the former
employee is entitled to receive, on request:
(1) a written description of each quota to which the
employee was subject as of the date of the employee's separation;
(2) a copy of the employee's work speed data for the
six-month period preceding the date of the employee's separation
from employment; and
(3) a copy of aggregated work speed data for similar
employees at the same establishment for the six-month period
preceding the date of the employee's separation from employment.
(d) A record requested under this section must be provided
at no cost to the requestor.
(e) An employer shall provide access to a record requested
under this section not later than:
(1) for a written description of each quota to which an
employee was subject, the second business day after the date the
employer receives the request; and
(2) for all other records requested under this
section, the seventh business day after the date the employer
receives the request.
(f) This section does not require an employer to use quotas
or monitor work speed data. An employer that does not use quotas or
monitor work speed data is not required to maintain or provide the
records as described by this section.
SUBCHAPTER C. UNLAWFUL RETALIATION
Sec. 96.101. UNLAWFUL RETALIATION. (a) An employer may not
retaliate or otherwise take any adverse employment action against
an employee for exercising any right conferred by this chapter, or
for being perceived as exercising any right conferred by this
chapter, including for:
(1) making a request for information about a quota or
personal work speed data under Section 96.054; or
(2) making a complaint related to a quota or alleging a
violation of this chapter to the employer, the commission, or a
local, state, or federal governmental agency or official.
(b) For each adverse employment action taken against an
employee before the 90th day after the date the employee engages or
attempts to engage in an activity protected under this chapter,
there is a rebuttable presumption that the adverse employment
action violates this chapter. The presumption may be rebutted by
clear and convincing evidence that:
(1) the adverse employment action was taken for other
permissible reasons; and
(2) the engaging or attempting to engage in an
activity protected by this chapter was not a motivating factor in
the adverse employment action.
SUBCHAPTER D. ENFORCEMENT
Sec. 96.151. WORKPLACE INSPECTION BY COMMISSION; REFERRAL
TO ATTORNEY GENERAL. (a) The commission shall investigate an
employer for a violation of this chapter if the employer's worksite
is found to have an annual employee injury rate of at least one and
one-half times the warehousing industry's average annual injury or
fatality rate as published by the Bureau of Labor Statistics' most
recent Occupational Injuries and Illnesses and Fatal Injuries
database.
(b) Following an inspection under Subsection (a), the
commission may refer the matter to the attorney general for
enforcement if the commission has reason to believe that the
employer has violated this chapter.
Sec. 96.152. ATTORNEY GENERAL ACTION. The attorney general
may bring a civil action against an employer for a violation of this
chapter.
Sec. 96.153. PRIVATE RIGHT OF ACTION. (a) A current or
former employee or a representative of a current or former employee
may bring an action for injunctive relief to obtain compliance with
this chapter and may, on prevailing in the action, recover costs and
reasonable attorney's fees in the action.
(b) In an action involving a quota imposed by an employer
that prevented compliance with any applicable law or regulation
relating to workplace safety, employee health, or meal or rest
break requirements, injunctive relief shall be limited to:
(1) suspension of the quota; and
(2) compensatory damages in the form of restitution to
address any retaliation or other adverse employment action taken by
the employer in relation to the complaint or its enforcement.
(c) In an action involving retaliation in violation of this
chapter, a prevailing current or former employee or a
representative of a current or former employee may be awarded
exemplary damages equal to the greater of $10,000 or three times the
amount of any compensatory damages, including for unpaid wages and
employment benefits. Damages awarded under this subsection are in
addition to injunctive relief.
SECTION 2. As soon as practicable after the effective date
of this Act, the Texas Workforce Commission shall adopt rules
necessary to implement Subtitle F, Title 2, Labor Code, as added by
this Act.
SECTION 3. The change in law made by this Act applies only
to a cause of action that accrues on or after the effective date of
this Act.
SECTION 4. This Act takes effect September 1, 2023.