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.