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.