Texas 2023 - 88th Regular

Texas House Bill HB4394 Compare Versions

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1	1	88R10271 SCP-F
2	2	By: Bryant H.B. No. 4394
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to increasing warehouse worker protections.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Title 2, Labor Code, is amended by adding
10	10	Subtitle F to read as follows:
11	11	SUBTITLE F. WORKER PROTECTIONS
12	12	CHAPTER 96. WAREHOUSE WORKER PROTECTIONS
13	13	SUBCHAPTER A. GENERAL PROVISIONS
14	14	Sec. 96.001. DEFINITIONS. In this chapter:
15	15	(1) "Adverse employment action" includes termination,
16	16	demotion, unfavorable reassignment, failure to promote,
17	17	disciplinary action, reduction in compensation, and constructive
18	18	discharge.
19	19	(2) "Aggregated work speed data" means employee work
20	20	speed data that an employer has combined or collected together in
21	21	summary or other form such that the data cannot be identified with
22	22	any individual.
23	23	(3) "Commission" means the Texas Workforce
24	24	Commission.
25	25	(4) "Controlled group of corporations" means any group
26	26	through which one or more chains of corporations are connected
27	27	through stock ownership with a common parent corporation if:
28	28	(A) stock possessing at least 50 percent of the
29	29	total combined voting power of all classes of stock entitled to vote
30	30	or at least 50 percent of the total value of shares of all classes of
31	31	stock of each of the corporations, except the common parent
32	32	corporation, is owned by one or more of the other corporations; and
33	33	(B) the common parent corporation owns stock
34	34	possessing at least 50 percent of the total combined voting power of
35	35	all classes of stock entitled to vote or at least 50 percent of the
36	36	total value of shares of all classes of stock of at least one of the
37	37	other corporations, excluding, in computing such voting power or
38	38	value, stock owned directly by such other corporations.
39	39	(5) "Defined time period" means any time interval
40	40	equal to or less than the duration of an employee's shift.
41	41	(6) "Employee" means an individual who is employed by
42	42	an employer for compensation. The term does not include an
43	43	independent contractor.
44	44	(7) "Employee work speed data" means information an
45	45	employer collects, stores, analyzes, or interprets relating to an
46	46	employee's performance of a quota, including quantities of tasks
47	47	performed, quantities of items or materials handled or produced,
48	48	rates or speeds of tasks performed, measurements or metrics of
49	49	employee performance in relation to a quota, and time categorized
50	50	as performing tasks or not performing tasks.
51	51	(8) "Employer":
52	52	(A) means a person who directly or indirectly, or
53	53	through an agent or any other person, including through the
54	54	services of a third-party employer, temporary services, or staffing
55	55	agency, independent contractor, or any similar entity, at any time
56	56	during the preceding 12 months, employs or exercises control over
57	57	the wages, hours, or working conditions of:
58	58	(i) 100 or more workers, including workers
59	59	employed by a member of a controlled group of corporations of which
60	60	the person is a member, at a single warehouse distribution center;
61	61	or
62	62	(ii) 500 or more workers, including workers
63	63	employed by a member of a controlled group of corporations of which
64	64	the person is a member, at one or more warehouse distribution
65	65	centers in this state; and
66	66	(B) includes any agent or other person, and any
67	67	member of, a controlled group of corporations of which a person
68	68	described by Paragraph (A) is a member.
69	69	(9) "Quota" means a work standard by which:
70	70	(A) an employee is assigned or required to
71	71	perform at a specified productivity speed or complete a quantified
72	72	number of tasks within a defined time period; or
73	73	(B) an employee's actions are categorized
74	74	between time performing tasks and not performing tasks and a
75	75	performance standard or recommendation is applied to the employee's
76	76	actions.
77	77	(10) "Warehouse distribution center" means an entity
78	78	described by any of the following North American Industry
79	79	Classification System (NAICS) codes as they exist on September 1,
80	80	2023:
81	81	(A) 493 for warehousing and storage;
82	82	(B) 423 for merchant wholesalers, durable goods;
83	83	(C) 424 for merchant wholesalers, nondurable
84	84	goods;
85	85	(D) 454110 for electronic shopping and
86	86	mail-order houses; or
87	87	(E) 492110 for couriers and express delivery
88	88	services.
89	89	Sec. 96.002. APPLICABILITY TO EMPLOYEES. This chapter
90	90	applies only to an employee who:
91	91	(1) works at a warehouse distribution center in a
92	92	non-administrative position; and
93	93	(2) is subject to a quota described by Section 96.051.
94	94	Sec. 96.003. RULES. The commission shall adopt rules as
95	95	necessary for the administration of this chapter.
96	96	SUBCHAPTER B. EMPLOYER REQUIREMENTS
97	97	Sec. 96.051. QUOTAS. (a) An employer shall provide to a
98	98	new employee, not later than the 30th day after the date the
99	99	employee is hired, a written description of:
100	100	(1) each quota to which the employee is subject,
101	101	including the number of tasks to be performed or materials to be
102	102	produced or handled within the defined time period; and
103	103	(2) any potential adverse employment action that could
104	104	result from failure to meet a quota described by Subdivision (1).
105	105	(b) For each change to a quota that occurs after the date an
106	106	employee was hired, the employer shall provide an updated written
107	107	description of each changed quota to which the employee is subject
108	108	not later than the second business day before the date the changed
109	109	quota takes effect.
110	110	(c) An employer shall provide an employee with notice of the
111	111	applicable quota for the employee before an employer takes an
112	112	adverse employment action against an employee in relation to the
113	113	employee's performance of a quota.
114	114	(d) An employee may not be required to meet a quota that
115	115	prevents compliance with meal or rest periods or use of bathroom
116	116	facilities required by law, including reasonable travel time to and
117	117	from bathroom facilities.
118	118	(e) An employer may not take adverse employment action
119	119	against an employee for failure to meet a quota that:
120	120	(1) does not allow an employee to comply with meal and
121	121	rest periods; or
122	122	(2) has not been disclosed to the employee under this
123	123	section.
124	124	(f) Paid and unpaid breaks may not be considered productive
125	125	time for the purpose of any quota or monitoring system unless the
126	126	employee is required to remain on call during the paid or unpaid
127	127	break.
128	128	Sec. 96.052. POSTING OF WORKPLACE NOTICE. An employer
129	129	shall post a public notice in the workplace informing employees of
130	130	their rights under this chapter, including:
131	131	(1) the amount of work in a prescribed time that
132	132	constitutes a permissible quota; and
133	133	(2) the right of an employee to:
134	134	(A) request quota and speed data information; and
135	135	(B) make a complaint to an applicable state
136	136	authority regarding a violation of an employee's rights under this
137	137	chapter.
138	138	Sec. 96.053. RECORDKEEPING. (a) An employer that uses
139	139	quotas or monitors work speed data shall maintain records of:
140	140	(1) the individual work speed data of each employee;
141	141	(2) the aggregated work speed data for similar
142	142	employees at the same establishment; and
143	143	(3) a written description of the quotas each employee
144	144	was provided under Section 96.051.
145	145	(b) The records described under Subsection (a) must be
146	146	maintained for the duration of the employee's employment.
147	147	(c) On an employee's separation from employment, the
148	148	employer shall retain the employer's records regarding the employee
149	149	for the six-month period preceding the date of the employee's
150	150	separation. The employer must retain the records for not less than
151	151	three years after the date of the employee's separation.
152	152	(d) An employer is not required to maintain records under
153	153	this section if the employer does not use quotas or monitor work
154	154	speed data.
155	155	Sec. 96.054. ACCESS TO RECORDS. (a) On request by the
156	156	commission, an employer shall provide a copy of the records
157	157	described by Section 96.053(a) to the commission.
158	158	(b) On request, a current employee of an employer is
159	159	entitled to receive from the employer:
160	160	(1) a written description of each quota to which the
161	161	employee is subject;
162	162	(2) a copy of the employee's work speed data; and
163	163	(3) a copy of the preceding six months of aggregated
164	164	work speed data for similar employees at the same workplace.
165	165	(c) Not later than the third anniversary of the date of an
166	166	employee's separation from employment with an employer, the former
167	167	employee is entitled to receive, on request:
168	168	(1) a written description of each quota to which the
169	169	employee was subject as of the date of the employee's separation;
170	170	(2) a copy of the employee's work speed data for the
171	171	six-month period preceding the date of the employee's separation
172	172	from employment; and
173	173	(3) a copy of aggregated work speed data for similar
174	174	employees at the same establishment for the six-month period
175	175	preceding the date of the employee's separation from employment.
176	176	(d) A record requested under this section must be provided
177	177	at no cost to the requestor.
178	178	(e) An employer shall provide access to a record requested
179	179	under this section not later than:
180	180	(1) for a written description of each quota to which an
181	181	employee was subject, the second business day after the date the
182	182	employer receives the request; and
183	183	(2) for all other records requested under this
184	184	section, the seventh business day after the date the employer
185	185	receives the request.
186	186	(f) This section does not require an employer to use quotas
187	187	or monitor work speed data. An employer that does not use quotas or
188	188	monitor work speed data is not required to maintain or provide the
189	189	records as described by this section.
190	190	SUBCHAPTER C. UNLAWFUL RETALIATION
191	191	Sec. 96.101. UNLAWFUL RETALIATION. (a) An employer may not
192	192	retaliate or otherwise take any adverse employment action against
193	193	an employee for exercising any right conferred by this chapter, or
194	194	for being perceived as exercising any right conferred by this
195	195	chapter, including for:
196	196	(1) making a request for information about a quota or
197	197	personal work speed data under Section 96.054; or
198	198	(2) making a complaint related to a quota or alleging a
199	199	violation of this chapter to the employer, the commission, or a
200	200	local, state, or federal governmental agency or official.
201	201	(b) For each adverse employment action taken against an
202	202	employee before the 90th day after the date the employee engages or
203	203	attempts to engage in an activity protected under this chapter,
204	204	there is a rebuttable presumption that the adverse employment
205	205	action violates this chapter. The presumption may be rebutted by
206	206	clear and convincing evidence that:
207	207	(1) the adverse employment action was taken for other
208	208	permissible reasons; and
209	209	(2) the engaging or attempting to engage in an
210	210	activity protected by this chapter was not a motivating factor in
211	211	the adverse employment action.
212	212	SUBCHAPTER D. ENFORCEMENT
213	213	Sec. 96.151. WORKPLACE INSPECTION BY COMMISSION; REFERRAL
214	214	TO ATTORNEY GENERAL. (a) The commission shall investigate an
215	215	employer for a violation of this chapter if the employer's worksite
216	216	is found to have an annual employee injury rate of at least one and
217	217	one-half times the warehousing industry's average annual injury or
218	218	fatality rate as published by the Bureau of Labor Statistics' most
219	219	recent Occupational Injuries and Illnesses and Fatal Injuries
220	220	database.
221	221	(b) Following an inspection under Subsection (a), the
222	222	commission may refer the matter to the attorney general for
223	223	enforcement if the commission has reason to believe that the
224	224	employer has violated this chapter.
225	225	Sec. 96.152. ATTORNEY GENERAL ACTION. The attorney general
226	226	may bring a civil action against an employer for a violation of this
227	227	chapter.
228	228	Sec. 96.153. PRIVATE RIGHT OF ACTION. (a) A current or
229	229	former employee or a representative of a current or former employee
230	230	may bring an action for injunctive relief to obtain compliance with
231	231	this chapter and may, on prevailing in the action, recover costs and
232	232	reasonable attorney's fees in the action.
233	233	(b) In an action involving a quota imposed by an employer
234	234	that prevented compliance with any applicable law or regulation
235	235	relating to workplace safety, employee health, or meal or rest
236	236	break requirements, injunctive relief shall be limited to:
237	237	(1) suspension of the quota; and
238	238	(2) compensatory damages in the form of restitution to
239	239	address any retaliation or other adverse employment action taken by
240	240	the employer in relation to the complaint or its enforcement.
241	241	(c) In an action involving retaliation in violation of this
242	242	chapter, a prevailing current or former employee or a
243	243	representative of a current or former employee may be awarded
244	244	exemplary damages equal to the greater of $10,000 or three times the
245	245	amount of any compensatory damages, including for unpaid wages and
246	246	employment benefits. Damages awarded under this subsection are in
247	247	addition to injunctive relief.
248	248	SECTION 2. As soon as practicable after the effective date
249	249	of this Act, the Texas Workforce Commission shall adopt rules
250	250	necessary to implement Subtitle F, Title 2, Labor Code, as added by
251	251	this Act.
252	252	SECTION 3. The change in law made by this Act applies only
253	253	to a cause of action that accrues on or after the effective date of
254	254	this Act.
255	255	SECTION 4. This Act takes effect September 1, 2023.