By: Oliveira H.B. No. 1334
73R4559 PB-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the enforcement of certain employee claims for payment
1-3 of wages.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 1(2), Article 5155, Revised Statutes, is
1-6 amended to read as follows:
1-7 (2) "Employer" means a person that employs one or more
1-8 employees, and any other person that acts directly or indirectly in
1-9 the interests of an employer in relation to an employee. The term
1-10 does not include the federal government, this state, or a political
1-11 subdivision of the state.
1-12 SECTION 2. Sections 5(e), (g), (h), and (j), Article 5155,
1-13 Revised Statutes, are amended to read as follows:
1-14 (e) An employer who does not request a hearing in a timely
1-15 manner to contest a preliminary wage determination order shall pay
1-16 the amounts ordered to the commission not later than the 21st day
1-17 after the date of mailing of the commission notice. The payment
1-18 must equal the net amount of outstanding wages after any valid
1-19 deductions and must include an itemized list of the deductions.
1-20 Payment to the commission constitutes payment to the employee for
1-21 all purposes.
1-22 (g) If it is determined after hearing by the commission that
1-23 wages are due or a penalty may be assessed, the commission shall
1-24 enter a written order to that effect. The commission shall notify
2-1 the parties in writing of the decision, the amount of wages subject
2-2 to the order, the amount of any penalty assessed, and the parties'
2-3 right to judicial review of the commission's order. The commission
2-4 shall mail the notice to each party at that party's last known
2-5 address, as reflected by commission records. The order of the
2-6 commission shall become final 14 days after the mailing thereof,
2-7 unless, within the 14 days, the hearing is reopened by commission
2-8 order or a party to the appeal files a written motion for
2-9 rehearing. A party may bring an action in a court of competent
2-10 jurisdiction to appeal the final order, if the party has exhausted
2-11 the party's administrative remedies under this article. The action
2-12 must be filed not later than the 30th <60th> day after the date the
2-13 final order is mailed. In the action, the commission and any other
2-14 party to the proceeding before the commission shall be made
2-15 defendants. The action shall be brought in the county of the
2-16 claimant's residence, provided that if the claimant is a
2-17 nonresident of the State of Texas the action shall be brought in
2-18 the county in Texas in which the employer has his principal place
2-19 of business. An appeal under this section is governed by the trial
2-20 de novo with substantial evidence standard of review as applied to
2-21 an appeal from a final decision under the Texas Unemployment
2-22 Compensation Act (Article 5221b-1 et seq., Vernon's Texas Civil
2-23 Statutes).
2-24 (h) Not later than the 30th <60th> day after the date the
2-25 commission's order is final, the party required to pay wages or
2-26 assessed a penalty shall either remit the amount in question to the
2-27 commission or, if the party files a petition for judicial review in
3-1 a court of competent jurisdiction contesting the final order,
3-2 forward all amounts assessed to the commission for deposit in
3-3 escrow in an interest-bearing account. Unless the person files an
3-4 affidavit of inability to pay with the clerk of the court within
3-5 the specified period, failure to forward the amounts within the
3-6 specified period constitutes a waiver of the right to judicial
3-7 review.
3-8 (j) The commission <attorney general> may bring an action in
3-9 a Travis County district court in the name of the state and the
3-10 attorney general to enforce a final order from which an appeal has
3-11 not been taken as provided by this article or may serve a notice of
3-12 assessment on the defaulting party stating the amount due. A
3-13 notice of assessment served under this subsection is prima facie
3-14 evidence of the contents of the notice. However, the defaulting
3-15 party may show the incorrectness of the notice of assessment. The
3-16 notice shall be served in the manner provided by law for service of
3-17 process on a defendant in a civil action in district court. A
3-18 person who is aggrieved by the determination of the commission as
3-19 stated in the notice of assessment may seek judicial review of the
3-20 assessment by filing a petition for judicial review in a Travis
3-21 County district court not later than the 30th day after the date on
3-22 which the notice of the assessment is served. A copy of the
3-23 petition shall be served on a member of the commission, or on a
3-24 designee of the commission for service of process, in the manner
3-25 prescribed by law for service of process on a defendant in a civil
3-26 action in district court. If the party on whom a notice of
3-27 assessment is served does not seek judicial review as provided by
4-1 this subsection, the assessment is final for all purposes. An
4-2 assessment that is not contested or that is upheld after judicial
4-3 review shall be treated as if it were the final judgment of a
4-4 district court and shall be recorded, enforced, and renewed in the
4-5 same manner. Unless the adverse party prevails in the civil action
4-6 or the notice of assessment is reversed by a reviewing court, the
4-7 adverse party shall pay all costs of either action, including <In
4-8 the action the attorney general also may seek, and the court may
4-9 order, recovery of> attorney's fees, <including> investigation
4-10 costs, service costs, court costs, and other applicable costs <of
4-11 court>.
4-12 SECTION 3. Article 5155, Revised Statutes, is amended by
4-13 adding Sections 5B, 5C, and 5D to read as follows:
4-14 Sec. 5B. SUIT FOR RETALIATION. (a) An employee has a cause
4-15 of action against an employer who suspends or terminates the
4-16 employment of the employee or otherwise disciplines or
4-17 discriminates against the employee for filing a claim for wages
4-18 under this article in good faith.
4-19 (b) The employee may recover:
4-20 (1) the greater of $1,000 or the amount of actual
4-21 damages, including:
4-22 (A) damages for mental anguish even if an injury
4-23 other than mental anguish is not shown; and
4-24 (B) if the employee's employment was suspended
4-25 or terminated, damages for lost wages;
4-26 (2) exemplary damages;
4-27 (3) court costs; and
5-1 (4) reasonable attorney's fees.
5-2 (c) In addition to the amounts recovered under Subsection
5-3 (b) of this section, an employee whose employment is suspended or
5-4 terminated is entitled to reinstatement in the employee's former
5-5 position.
5-6 (d) The employee must bring suit not later than the 90th day
5-7 after the date on which the employee's employment was suspended or
5-8 terminated.
5-9 (e) The employee has the burden of proof, except that there
5-10 is a rebuttable presumption that the employee's employment was
5-11 suspended or terminated for filing a claim for wages if the
5-12 employee's employment is suspended or terminated not later than the
5-13 60th day after the date on which the employee filed the wage claim
5-14 with the commission in good faith.
5-15 (f) A suit under this section may be brought in the district
5-16 court of the county in which:
5-17 (1) the employee resides;
5-18 (2) the employee was employed by the employer; or
5-19 (3) the employer conducts business.
5-20 Sec. 5C. RECIPROCAL COLLECTION ARRANGEMENTS. The commission
5-21 may enter into reciprocal arrangements with appropriate authorized
5-22 agencies of the United States, other states of the United States,
5-23 Puerto Rico, the District of Columbia, or the Virgin Islands for
5-24 the collection of wage claims that have become final under the laws
5-25 of the jurisdiction in which they were filed.
5-26 Sec. 5D. NOTICE OF DELINQUENCY; LEVY. (a) If, under a
5-27 final order, a party is determined to be delinquent in the payment
6-1 of wages, penalties, interest, or other amounts due under this
6-2 article, the commission may notify personally or by registered mail
6-3 any person who:
6-4 (1) possesses or controls any asset of the delinquent
6-5 party, including a credit, bank, or savings account, deposit, or
6-6 other intangible or personal property; or
6-7 (2) owes a debt to the delinquent party.
6-8 (b) A notice under this section to a state officer,
6-9 department, or agency must be provided before the officer,
6-10 department, or agency presents to the comptroller the claim of the
6-11 delinquent party.
6-12 (c) A notice under this section may be given at any time
6-13 after the wages, penalties, interest, or other amounts due under
6-14 this article become delinquent. The notice must state the amount
6-15 of wages, penalties, interest, or other amounts due and owing and
6-16 any additional amount that will accrue by operation of law in a
6-17 period not to exceed 30 days and, in the case of a credit, bank, or
6-18 savings account or deposit, is effective only up to that amount.
6-19 (d) On receipt of a notice under this section, the person
6-20 receiving the notice:
6-21 (1) shall advise the commission not later than the
6-22 20th day after the date on which the notice is received of each
6-23 asset belonging to the delinquent party that is possessed or
6-24 controlled by the person receiving the notice, and of each debt
6-25 owed by the person receiving the notice to the delinquent party;
6-26 and
6-27 (2) unless the commission consents to an earlier
7-1 disposition, may not transfer or dispose of the asset or debt
7-2 possessed, controlled, or owed by the person on the date the person
7-3 received the notice within the 60-day period beginning on the date
7-4 of receipt of the notice.
7-5 (e) A notice under this section that attempts to prohibit
7-6 the transfer or disposition of an asset possessed or controlled by
7-7 a bank is not effective unless it is delivered or mailed to the
7-8 principal office of the bank or the office of the bank at which the
7-9 deposit is carried or the credit or property is held.
7-10 (f) A person who receives a notice under this section and
7-11 who violates Subsection (d)(2) of this section is liable to the
7-12 commission for the amount of the indebtedness of the delinquent
7-13 party with respect to whose obligation the notice was given, to the
7-14 extent of the value of the affected asset or debt.
7-15 (g) At any time during the last 45 days of the 60-day period
7-16 provided by Subsection (d)(2) of this section, the commission may
7-17 levy on the asset or debt by delivery of a notice of levy. On
7-18 receipt of the levy notice, the person possessing the asset or debt
7-19 shall transfer the asset to the commission or pay to the commission
7-20 the amount owed to the delinquent party.
7-21 (h) A notice delivered under this section is effective at
7-22 the time of delivery against all property, rights to property,
7-23 credits, or debts involving the delinquent party that are not on
7-24 the date of the notice subject to a preexisting attachment,
7-25 garnishment, or execution issued through a judicial process.
7-26 (i) A person acting in accordance with the terms of a notice
7-27 issued by the commission under this section is discharged from any
8-1 obligation or liability to the delinquent party with respect to the
8-2 property or rights to property, credits, or debts of the party
8-3 affected by compliance with the notice.
8-4 SECTION 4. Section 7, Article 5155, Revised Statutes, is
8-5 amended to read as follows:
8-6 Sec. 7. POWERS AND DUTIES OF COMMISSION; RULES; SUBPOENAS
8-7 <ADMINISTRATION OF OATHS>. (a) The commission shall administer
8-8 this article and shall <may> adopt rules as necessary to implement
8-9 this article.
8-10 (b) The commission may require reports, conduct
8-11 investigations, and take other action as it considers <administer
8-12 oaths as> necessary to implement this article.
8-13 (c) In the discharge of the duties imposed by this article,
8-14 any duly authorized representative or member of the commission may
8-15 administer oaths and affirmations, take depositions, certify to
8-16 official acts, and issue subpoenas to compel the attendance of
8-17 witnesses and the production of books, papers, correspondence,
8-18 memoranda, and other records considered necessary as evidence in
8-19 the administration of this article. Notwithstanding Chapter 152 or
8-20 154, Local Government Code, or any other law of this state, the
8-21 fees of sheriffs and constables for serving a subpoena under this
8-22 subsection shall be paid by the commission out of its
8-23 administrative funds, and the comptroller shall issue warrants for
8-24 those fees as directed by the commission.
8-25 (d) In the case of contumacy or other refusal to obey a
8-26 subpoena issued by a member of the commission or any authorized
8-27 representative of the commission to any person, any county or
9-1 district court of this state within the jurisdiction of which the
9-2 inquiry is carried on or within the jurisdiction of which the
9-3 person guilty of contumacy or refusal to obey is found, resides, or
9-4 transacts business shall have jurisdiction on application by the
9-5 commission or its representative to issue to the person an order
9-6 requiring the person to appear before a commissioner, the
9-7 commission, or its authorized representative to produce evidence if
9-8 so ordered or to give testimony regarding the matter under
9-9 investigation or in question. Failure to obey the court order may
9-10 be punished by the court as contempt. A person who, without just
9-11 cause, fails or refuses to attend and testify, to answer any lawful
9-12 inquiry, or to produce books, papers, correspondence, memoranda,
9-13 and other records in obedience to a subpoena of the commission,
9-14 commits an offense. An offense under this subsection is punishable
9-15 by a fine of not less than $200, by confinement for not more than
9-16 60 days, or by both fine and confinement. Each day of violation
9-17 constitutes a separate offense.
9-18 SECTION 5. This Act takes effect September 1, 1993, and
9-19 applies only to a wage claim filed with the Texas Employment
9-20 Commission on or after that date. A wage claim filed before that
9-21 date is governed by the law in effect on the date that the claim
9-22 was filed, and the former law is continued in effect for that
9-23 purpose.
9-24 SECTION 6. The importance of this legislation and the
9-25 crowded condition of the calendars in both houses create an
9-26 emergency and an imperative public necessity that the
9-27 constitutional rule requiring bills to be read on three several
10-1 days in each house be suspended, and this rule is hereby suspended.