By Maxey H.B. No. 96
77R4 JMM-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the payment of wages and gratuities to certain
1-3 employees; providing penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subchapter B, Chapter 61, Labor Code, is amended
1-6 by adding Section 61.021 to read as follows:
1-7 Sec. 61.021. GRATUITIES PAID TO CERTAIN TIPPED EMPLOYEES;
1-8 CRIMINAL PENALTY. (a) In this section, "restaurant" and "tipped
1-9 employee" have the meaning assigned by Section 62.052.
1-10 (b) An employer may not collect or receive any portion of a
1-11 gratuity paid to or left for a tipped employee employed at a
1-12 restaurant. The gratuity is the property of the tipped employee.
1-13 (c) An employer may not require a tipped employee employed
1-14 at a restaurant to pool the employee's tips. An employee may pay
1-15 part of the employee's tips to another person as the employee
1-16 determines appropriate.
1-17 (d) An employer may not require an employee employed at a
1-18 restaurant to compensate the restaurant for any unintentional
1-19 breakage or loss, walkout without payment by a patron, or
1-20 complimentary meal given to a patron by the restaurant.
1-21 (e) An employer who violates this section commits an
1-22 offense. An offense under this subsection is a Class B
1-23 misdemeanor.
1-24 SECTION 2. Section 61.053(c), Labor Code, is amended to read
2-1 as follows:
2-2 (c) An administrative penalty assessed under this section
2-3 may not exceed the lesser of:
2-4 (1) the amount of the wages in question or claimed; or
2-5 (2) $5,000 [$1,000].
2-6 SECTION 3. Chapter 61, Labor Code, is amended by adding
2-7 Subchapter G to read as follows:
2-8 SUBCHAPTER G. DISCRIMINATION PROHIBITED
2-9 Sec. 61.101. DISCRIMINATION AGAINST EMPLOYEE PROHIBITED. A
2-10 person may not discharge or in any other manner discriminate
2-11 against an employee because the employee has:
2-12 (1) filed a wage claim in good faith;
2-13 (2) hired a lawyer to represent the employee in a
2-14 claim;
2-15 (3) instituted or caused to be instituted in good
2-16 faith a proceeding under this chapter; or
2-17 (4) testified or is about to testify in a proceeding
2-18 under this chapter.
2-19 Sec. 61.102. REMEDIES; BURDEN OF PROOF. (a) A person who
2-20 violates Section 61.101 is liable to the employee for reasonable
2-21 damages incurred by the employee as a result of the violation.
2-22 (b) An employee discharged in violation of Section 61.101 is
2-23 entitled to reinstatement in the former position of employment.
2-24 (c) The burden of proof in a proceeding under this section
2-25 is on the employee.
2-26 SECTION 4. Section 62.052, Labor Code, is amended to read as
2-27 follows:
3-1 Sec. 62.052. TIPPED EMPLOYEES; CRIMINAL PENALTY. (a) [In
3-2 determining the wage of a tipped employee, the amount paid the
3-3 employee by the employer is considered to be increased because of
3-4 tips by an amount determined by the employer but that does not
3-5 exceed 50 percent of the applicable minimum wage rate.]
3-6 [(b)] In this section:
3-7 (1) "Federal minimum wage" means the wage required by
3-8 Section 6, Fair Labor Standards Act of 1938 (29 U.S.C. Section
3-9 206).
3-10 (2) "Restaurant" means an establishment that derives
3-11 75 percent or more of its gross revenue from the sale of food and
3-12 beverages, not including alcoholic beverages, for on-premises
3-13 consumption. The term does not include a hotel or motel, except
3-14 that a restaurant operated at a hotel or motel is included in the
3-15 term.
3-16 (3) "Tipped [, "tipped] employee" means an employee
3-17 engaged in an occupation in which the employee customarily and
3-18 regularly receives more than $30 [$20] a month in tips.
3-19 (b) In determining the wage of a tipped employee, the amount
3-20 paid the employee by the employer is considered to be increased
3-21 because of tips by an amount determined by the employer but that
3-22 does not exceed 50 percent of the applicable minimum wage rate.
3-23 (c) An employer shall pay a tipped employee employed at a
3-24 restaurant not less than 60 percent of the federal minimum wage. An
3-25 employer who prevents an employee employed at a restaurant from
3-26 earning tips shall pay the employee not less than the federal
3-27 minimum wage. For purposes of this subsection, side work performed
4-1 by the employee is included as work for which the employee is
4-2 entitled to be paid.
4-3 (d) An employer who violates this section commits an
4-4 offense. An offense under this subsection is a Class B misdemeanor.
4-5 SECTION 5. (a) This Act takes effect September 1, 2001.
4-6 (b) The change in law made by this Act by the enactment of
4-7 Section 61.021, Labor Code, applies only to a gratuity paid to or
4-8 left for an employee on or after the effective date of this Act.
4-9 (c) The change in law made by this Act to Section 61.053(c),
4-10 Labor Code, applies to an administrative penalty assessed by the
4-11 Texas Workforce Commission on or after the effective date of this
4-12 Act. An administrative penalty assessed before the effective date
4-13 of this Act is governed by the law in effect on the date the
4-14 administrative penalty was assessed, and the former law is
4-15 continued in effect for that purpose.
4-16 (d) The change in law made by this Act by the enactment of
4-17 Subchapter G, Chapter 61, Labor Code, applies only to a wage claim
4-18 filed with the Texas Workforce Commission on or after the effective
4-19 date of this Act.