By Moreno of Harris H.B. No. 3342 Line and page numbers may not match official copy. Bill not drafted by TLC or Senate E&E. A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to the rights of temporary employees. 1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-4 SECTION 1. Title 2, Labor Code, is amended by adding Chapter 1-5 94 to read as follows: 1-6 CHAPTER 94. RIGHTS OF TEMPORARY EMPLOYEES 1-7 Sec. 1.01. DEFINITIONS. In this article: 1-8 (a) "Temporary employment service" means person who employs 1-9 individuals for the purpose of assigning those individuals to the 1-10 clients of the service to support or supplement the client's 1-11 workforce in a special work situation, including: 1-12 (A) an employee absence; 1-13 (B) a temporary skill shortage; 1-14 (C) a seasonal workload; or 1-15 (D) a special assignment or project. 1-16 (b) "Temporary employee" means an individual hired for a 1-17 temporary employment service. 1-18 (c) "Client company" or "client" means any person, including 1-19 any natural person, sole proprietorship, partnership, limited 1-20 partnership, corporation, limited liability company or joint 1-21 venture, for which a temporary employment service procures or 1-22 provides temporary employees. 1-23 Sec. 1.02. NOTICES AND DISCLOSURE. 2-1 (a) A temporary employment company shall post in its office 2-2 where temporary employees are required to appear for assignment to 2-3 work or for payment of compensation, or if it does not have such an 2-4 office, provide to each temporary employee seeking work, a list of 2-5 all client companies at which work is available through the 2-6 temporary employment company, which shall include the following for 2-7 each job opportunity posted: 2-8 (1) The name and address of the client and the exact 2-9 address of the work site, directions to the worksite, and a 2-10 telephone number at which a temporary employee can be reached for 2-11 emergency purposes; 2-12 (2) The type of job opportunity for temporary 2-13 employees; 2-14 (3) A detailed description of the work to be performed 2-15 by the temporary employee, including any requirements for special 2-16 attire, accessories, tools or safety equipment; 2-17 (4) The method of computing compensation and the 2-18 amount of compensation and employee benefits to be paid for the 2-19 work, and the overtime rate of pay; 2-20 (5) The hourly rate and any other fees or charges paid 2-21 or payable to the temporary employment agency by or on behalf of 2-22 the client with respect to the work to be performed; 2-23 (6) If transportation is to be provided to the work 2-24 site, either by temporary services to the client, the cost of the 2-25 transportation, if any, and whether the work site is accessible by 2-26 public or personal transportation and the approximate commute time 3-1 to and from the work site; 3-2 (7) The duration of the work to be performed by the 3-3 temporary employee, including the time of the day the work will 3-4 begin, the time of day the work will end, the schedule of days on 3-5 which the work will be performed, when the work will end, and 3-6 whether there is any possibility of overtime work or of extension 3-7 of the work past the anticipated end date; 3-8 (8) A complete and accurate description of work site 3-9 hazards to which the temporary employee may become exposed, 3-10 including any hazardous materials which the worker may be required 3-11 to use or handle and any physical conditions or work practices 3-12 which do not comply with applications or work practices which do 3-13 not comply with applicable occupational health and safety 3-14 standards; 3-15 (9) Whether a meal is provided, either by the 3-16 temporary employment service or its client, and the cost of the 3-17 meal, if any; and 3-18 (10) Whether the temporary employee will be charged 3-19 for using special attire, accessories, tools or safety equipment; 3-20 (b) Before any temporary employee is given any new job 3-21 assignment regardless it the assignment is with the same 3-22 contracting company shall provide the temporary employee with the 3-23 notice provided above. 3-24 (c) The notices required to be posted under this section 3-25 shall be written in English and any other language or languages 3-26 that are generally used in the locale or locales of the temporary 4-1 employment service or its clients. Copies of all the notices 4-2 required by this section shall be kept on file for a period of one 4-3 year by the temporary services companies and shall be made 4-4 available for inspection by any affected temporary employees, who 4-5 shall be given copies of such notices, without charge, within 10 4-6 days of the worker's request thereof. 4-7 Sec. 1.03. COMPENSATION. A temporary employment service 4-8 shall: 4-9 (a) Compensate temporary employees for work performed in the 4-10 form of cash, or commonly accepted negotiable instruments that are 4-11 payable in cash, on demand at a financial institution, and without 4-12 discount regardless of the form or manner of payment; 4-13 (b) Pay equal compensation and employee benefits to those 4-14 temporary employees who are performing substantially equivalent 4-15 work as employees of the client company where they work and who 4-16 have been employed by the client company for a total of 90 days or 4-17 more, whether of not continuously. This section shall not apply to 4-18 a temporary employee who earns more pay than substantially 4-19 equivalent client company employees, unless such temporary employee 4-20 has replaced a client company employee who is on strike, or who has 4-21 been locked out by the client company subject to a labor dispute; 4-22 (c) Subject to Subsection (b), compensate temporary 4-23 employees at or above the federal or state minimum wage, whichever 4-24 is higher, in no event shall any deductions, other than those 4-25 permitted by federal or state law, bring the worker's pay below 4-26 minimum wage for the hours worked; 5-1 (d) At the time of each payment of wages, furnish each 5-2 worker a written itemized statement showing in detail each 5-3 deduction made from such wages, and a written notification, which 5-4 may be included on the worker's statement of earnings and 5-5 deductions, specifying the hourly rate and any other fees or 5-6 charges paid or payable to the temporary employment agency by or on 5-7 behalf of the recipient of the worker's services with respect to 5-8 the hours compensated by that wage payment; and 5-9 (e) Provide each worker with an annual earnings summary 5-10 within a reasonable period of time after the end of the preceding 5-11 calendar year, but no later than February 1. 5-12 Sec. 1.04. PROHIBITED CHARGES AND DEDUCTIONS. No temporary 5-13 employment service shall charge a temporary employee: 5-14 (a) For safety equipment, clothing, tools, accessories, or 5-15 any other items required by the nature of the work either by law, 5-16 custom, or as a requirement of the client company; 5-17 (1) This subsection shall not preclude the temporary 5-18 employment service from charging the temporary employee the market 5-19 value of items temporarily provided to the worker by the temporary 5-20 employment service, in the event that the worker willfully fails to 5-21 return such items to the company, but no charge may be made for 5-22 items damaged through ordinary use or lost through no fault of the 5-23 temporary employee; 5-24 (2) For items other than those referenced in this 5-25 subsection, which the temporary employment service makes available 5-26 for purchase, the day laborer shall be charged no more than the 6-1 actual cost of the item to the labor pool, or market value, 6-2 whichever is less; 6-3 (b) More than a reasonable amount to transport a worker to 6-4 or from the designated worksite, but in no event shall the amount 6-5 exceed the prevailing rate for public transportation in the 6-6 geographic area; 6-7 (c) For directly or indirectly chasing a worker's check; or 6-8 (d) More than the actual cost of providing lunch, if lunch 6-9 is provided at the worksite by the temporary employment service, 6-10 but in no case shall the purchase of lunch be a condition of 6-11 employment. 6-12 Sec. 1.05. PROTECTIONS FOR TEMPORARY EMPLOYEES. 6-13 (a) A temporary employment service that operates an office 6-14 where temporary employees are required to appear for assignment to 6-15 work or for payment of compensation shall provide facilities for a 6-16 worker waiting at the labor hall for a job assignment that include: 6-17 (1) Restroom facilities; 6-18 (2) Drinking water; and 6-19 (3) Sufficient seating. 6-20 (b) A temporary employment service shall insure any motor 6-21 vehicle owned or operated by the company and used for the 6-22 transportation of workers. 6-23 (c) No temporary employment service shall restrict the right 6-24 of a temporary employee to accept a permanent position with a 6-25 client company to whom the laborer is referred for temporary work, 6-26 or to restrict the right of such a client to offer such employment 7-1 to a temporary employee of the temporary employment service. 7-2 However, nothing shall restrict the temporary employment service 7-3 from receiving a reasonable placement fee from the client. 7-4 (d) A temporary employment service's workers' compensation 7-5 insurance premiums shall be determined and paid based on the 7-6 experience rating of the client company for which the temporary 7-7 employee performs services, provided the client company has 7-8 sufficient workers' compensation premium volume to be experience 7-9 rated, otherwise the premiums shall be the rate approved for an 7-10 employer that cannot be experience rated. 7-11 (e) No temporary employment service shall make or give, or 7-12 cause to be made or given, any false, misleading, or deceptive 7-13 advertisements, information or representations concerning the 7-14 services, compensation or benefits, or work opportunities that the 7-15 company will provide to temporary employees. 7-16 (f) All advertisements of a temporary employment service 7-17 shall contain the correct name of the temporary employment service 7-18 and one of the following: 7-19 (1) The street address of the company's place of 7-20 business; or 7-21 (2) The correct telephone number of the company at its 7-22 place of business. 7-23 (g) A temporary employment service or a client company shall 7-24 not discharge, reduce the compensation of or otherwise discriminate 7-25 against any employee for making a complaint of a violation of this 7-26 title, participating in any of its proceedings under this title, 8-1 using any civil remedies to enforce his or her rights, or otherwise 8-2 asserting his or her rights under this title. 8-3 Sec. 1.06. ENFORCEMENT. 8-4 (a) Any person who violates any provision of this title is 8-5 guilty of a misdemeanor. The Attorney General, any district 8-6 attorney, or any city attorney may prosecute misdemeanor actions. 8-7 (b) Actions for violation of this title, including, but not 8-8 limited to, equity proceedings to restrain and enjoin such a 8-9 violation, may be instituted by the Attorney General, any district 8-10 attorney, or any city attorney. This section shall not be deemed 8-11 to prohibit the enforcement by any person of any right provided by 8-12 this or any other law. 8-13 (c) Any person who is injured by any violation of this title 8-14 may bring an action for the recovery of damages, an equity 8-15 proceeding to restrain and enjoin those violations, or both. The 8-16 amount awarded may be up to three times the damages actually 8-17 incurred. If the plaintiff prevails, the plaintiff shall be 8-18 awarded a reasonable attorney's fee and costs. If the court 8-19 determines that the breach or violation was willful, by clear and 8-20 convincing evidence, the court, in its discretion, may award 8-21 punitive damages in addition to the amounts set forth above. 8-22 (d) The provisions of this title are not exclusive and do 8-23 not relieve the parties subject to this title from the duty to 8-24 comply with all other applicable laws. 8-25 (e) The remedies provided in this title are not exclusive 8-26 and shall be in addition to any other remedies or procedures 9-1 provided in any other law. 9-2 (f) Any waiver by a temporary employee of the provisions of 9-3 this title shall be deemed contrary to public policy and shall be 9-4 void and unenforceable. Any attempt by a temporary employment 9-5 service or its client company to have a temporary employee waive 9-6 rights given by this title shall constitute a violation of this 9-7 title. 9-8 Sec. 1.07. SEVERABILITY. If any section or any portion of a 9-9 section of this title is declared illegal, invalid or inoperative, 9-10 in whole or in part, by any court of competent jurisdiction, the 9-11 remaining section and all portions not declared illegal, invalid or 9-12 inoperative shall remain in full force or effect, and no such 9-13 determination shall invalidate the remaining sections or portions 9-14 of the sections of this title. 9-15 Sec. 1.08. UNEMPLOYMENT COMPENSATION. (a) An individual 9-16 that is a temporary employee for a temporary help firm will be 9-17 deemed to have voluntarily quit employment without good cause and 9-18 thus disqualified for unemployment compensation benefits if the 9-19 temporary employee did not contact the temporary help firm for 9-20 reassignment upon completion of an assignment. Failure to contact 9-21 the temporary help firm will not be deemed a voluntary quit without 9-22 good cause unless the temporary employee has been advised of the 9-23 obligation to contact the temporary help firm upon completion of 9-24 assignments and that unemployment benefits may be denied for 9-25 failure to contact the temporary help firm. Failure to contact the 9-26 temporary help firm will not be deemed a voluntary quit without 10-1 good cause if the temporary help firm has violated, with respect to 10-2 such employee, a provision of state or federal law for the 10-3 protection of employees or regulating temporary employment. 10-4 (b) When a temporary employee for a temporary help firm 10-5 completes an assignment with any third party, and has indicated his 10-6 or her availability to accept a new assignment to the temporary 10-7 help firm and is not offered a new assignment, the employee is 10-8 eligible for benefits when, for a period of five regular working 10-9 days, he or she has been offered no new assignment by the temporary 10-10 help firm substantially equivalent to the completed assignment in 10-11 compensation, benefits, working conditions and accessibility, and 10-12 has accepted no other employment. After the five-day period, the 10-13 temporary employee is eligible for the benefits authorized under 10-14 this part dating from the first day he or she had no assignment. 10-15 Sec. 1.09. SALES TAX ON TEMPORARY SERVICES. There is levied 10-16 a tax at the rate equal to the rate of tax on the sale of tangible 10-17 personal property at retail by the provisions of the gross receipts 10-18 or gross proceeds of each sale at retail of services rendered by 10-19 persons operating a temporary employee services firm which assigns 10-20 its employees to perform services to others with the understanding 10-21 that the temporary employee's services will be terminated at a 10-22 completions of the assigned tasks or functions or time period. 10-23 Sec. 1.10. STRIKE-BREAKERS. A temporary employment service 10-24 shall not: 10-25 (a) procure workers to replace employees who are not working 10-26 due to a labor dispute, 11-1 (b) send or refer workers to any worksite where a labor 11-2 dispute is in progress, 11-3 (c) send or refer workers to a client company involved in a 11-4 labor dispute, for work that would normally be performed by the 11-5 client company's employees, or 11-6 (d) send or refer workers to a client company for work that 11-7 the client company is performing because of the existence of a 11-8 labor dispute.