80R158 KSD-D

By: Rodriguez H.B. No. 456

A BILL TO BE ENTITLED

AN ACT

relating to the employment of certain day laborers; authorizing the imposition of an administrative penalty.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Subtitle B, Title 2, Labor Code, is amended by adding Chapter 53 to read as follows: CHAPTER 53. EMPLOYMENT OF DAY LABORERS SUBCHAPTER A. GENERAL PROVISIONS

Sec. 53.001. DEFINITIONS. In this chapter:

(1) "Commission" means the Texas Commission of Licensing and Regulation.

(2) "Day labor" means occasional or irregular labor for which an individual is employed for a period not longer than that required to complete a specific assignment, and for which wages are paid directly to the individual or indirectly by a day labor service agency or third party employer for work undertaken by the individual. The term does not include labor of a professional or clerical nature.

(3) "Day labor employer" means any person who directly, or indirectly through an agent or any other person acting in the person's interest, engages or permits a day laborer to work, or who otherwise has the right to exercise control over the wages, hours, or working conditions of a day laborer. The term:

(A) includes:

(i) a day labor service agency; and

(ii) a third party employer; and

(B) does not include an employment service or labor training program provided by a governmental entity or a nonprofit organization.

(4) "Day labor service agency" means any person who recruits, dispatches, or otherwise facilitates the employment of day laborers by a third party employer. The term includes a temporary common worker employer under Chapter 92.

(5) "Day laborer" means an individual engaged in or waiting to be engaged in day labor. The term includes a common worker described by Chapter 92.

(6) "Day laborer shape-up site" means any public area at which day laborers assemble to seek employment. The term may include residential and commercial locations and street corners.

(7) "Regular rate of pay" means the hourly wage rate agreed to by a day labor employer and a day laborer.

(8) "Third party employer" means a person who permits a day laborer to work by contracting with a day labor service agency. The term includes a user of common workers under Chapter 92.

(9) "Workday" means any consecutive 24-hour period beginning at the same time each calendar day.

Sec. 53.002. RIGHTS UNDER OTHER LAW. The rights provided by this chapter are cumulative of all other rights to which day laborers are entitled under other law. [Sections 53.003-53.050 reserved for expansion] SUBCHAPTER B. PAYMENT OF DAY LABORERS

Sec. 53.051. SUSTAINABLE WAGE REQUIRED. (a) A day labor employer shall pay a day laborer a wage rate that is not less than the prevailing wage rate paid to permanent employees who are performing substantially equivalent work, with due consideration given to seniority, experience, and skills.

(b) A day labor employer may not reduce the wage rate of any permanent full-time employee in order to comply with this section.

(c) A day labor employer may not pay a day laborer a regular hourly rate of pay that is less than the minimum wage required by law.

Sec. 53.052. COMPUTATION OF REGULAR HOURLY RATE OF PAY. (a) If a day labor employer and a day laborer negotiate a rate of pay, the day laborer's regular hourly rate of pay is computed by dividing the total amount agreed on for one week by 40.

(b) For a job requiring payment of the prevailing wage rate, the regular hourly rate of pay is the greater of:

(1) the prevailing wage; or

(2) the wage agreed to by the day labor employer and day laborer.

Sec. 53.053. REDUCTION OF PREVIOUSLY NEGOTIATED WAGE RATE PROHIBITED. If a day labor employer has offered and a day laborer has accepted a wage rate for a workday, the employer may not reduce the negotiated rate during that workday.

Sec. 53.054. NOTICE OF WAGE RATE REQUIRED. (a) A day labor employer shall provide notice of the wage rate expected to be paid to each day laborer.

(b) A day labor service agency shall provide notice to each day laborer of the wage rate expected to be paid by each third party employer using the services of the agency. The notice must be provided in English and Spanish.

(c) A third party employer using the services of a day labor service agency shall pay a day laborer a wage rate that is not less than the wage rate stated in the notice provided to the day laborer by the agency. A third party employer may not reduce the wage rate of any permanent full-time employee in order to comply with this subsection.

(d) The commission by rule shall prescribe the content of the notice required by this section.

Sec. 53.055. MINIMUM DAILY WAGE RATE. A day labor employer shall compensate a day laborer for at least four hours of work for each workday worked by the day laborer.

Sec. 53.056. COMPENSATION FOR OVERTIME. (a) A day labor employer shall pay a day laborer one and one-half times the regular hourly rate of pay for:

(1) each hour worked by the day laborer in excess of eight hours during any workday, up to and including 12 hours; and

(2) each of the first eight hours worked by the day laborer during a workday if the workday is the seventh consecutive workday worked by the day laborer in that week.

(b) A day labor employer shall pay a day laborer double the regular hourly rate of pay for:

(1) each hour worked by the day laborer in excess of 12 hours during any workday; and

(2) each hour worked by the day laborer in excess of eight hours during a workday if the workday is the seventh consecutive workday worked by the day laborer in that week.

Sec. 53.057. PAYMENT AFTER TERMINATION OF EMPLOYMENT. A day labor employer shall pay in full a day laborer who is discharged from employment not later than 72 hours after the day laborer is terminated.

Sec. 53.058. TIME OF PAYMENT FOR EMPLOYMENT LESS THAN ONE WEEK. If a day labor employer employs a day laborer for a period of less than one week, the employer shall pay the day laborer wages not later than the completion of each workday.

Sec. 53.059. COMPENSATION FOR TRAVEL TIME. (a) A day labor employer shall compensate a day laborer for travel time if the travel is an integral and indispensable part of the principal activities the day laborer is employed to perform.

(b) For purposes of this section, time spent by a day laborer traveling to the designated travel worksite from a labor hall, day laborer shape-up site, or any other day laborer hiring site is compensable at the day laborer's regular hourly rate of pay.

Sec. 53.060. PAYMENT BY CHECK; PROHIBITION AGAINST CHECK-CASHING CHARGES. (a) If a day labor employer pays a day laborer by check, the check must be immediately redeemable.

(b) A day labor employer may not charge a day laborer, directly or indirectly, for cashing a check issued by the employer for wages earned by the day laborer for work performed for or through that employer.

Sec. 53.061. NEGOTIABLE TENDER REQUIRED. A day labor employer shall provide any non-cash payment of wages to a day laborer in the form of immediately negotiable tender payable in cash on demand at a financial institution and without discount. [Sections 53.062-53.100 reserved for expansion] SUBCHAPTER C. ADDITIONAL DUTIES OF DAY LABOR EMPLOYERS

Sec. 53.101. DISCLOSURE OF EMPLOYER INFORMATION REQUIRED. At the time of hire, a day labor employer shall provide a day laborer with the employer's business name, phone number, and address.

Sec. 53.102. BREAKS AND MEALS. A day labor employer shall provide a day laborer:

(1) a 15-minute compensated break for each four-hour period of uninterrupted work; and

(2) a 30-minute compensated lunch for each period of uninterrupted work lasting longer than six hours.

Sec. 53.103. TRANSPORTATION BACK TO POINT OF HIRE. (a) At the end of each workday the day labor employer shall provide a day laborer with transportation from the designated worksite back to the labor hall, day laborer shape-up site, or other day laborer hiring site, as applicable.

(b) A day labor employer may charge a day laborer a reasonable amount not to exceed $1.50 each way to transport the day laborer to or from the designated worksite from the labor hall, day laborer shape-up site, or other day laborer hiring site, as applicable.

Sec. 53.104. WORKERS' COMPENSATION BENEFITS. (a) A day labor employer is responsible for providing a day laborer with workers' compensation benefits to the extent required by other law.

(b) A day labor employer shall provide to a day laborer not later than the completion of the day laborer's first workday:

(1) written notice prescribed by the commission, in English and Spanish, regarding the availability of workers' compensation benefits; and

(2) the name and phone number of the employer's workers' compensation insurance carrier, if applicable.

Sec. 53.105. PROHIBITION AGAINST CERTAIN WORK RESTRICTIONS IMPOSED BY DAY LABOR SERVICE AGENCY. A day labor service agency may not:

(1) restrict the right of a day laborer to accept an offer of permanent employment with a third party employer to which the agency referred the day laborer for temporary work;

(2) restrict the right of the third party employer to offer permanent employment to a day laborer; or

(3) charge the third party employer or day laborer a fine or any additional amount for making or accepting an offer of permanent employment, as applicable.

Sec. 53.106. SAFETY AND HEALTH REQUIREMENTS; PROHIBITION AGAINST CHARGES FOR SAFETY EQUIPMENT. (a) A day labor employer shall comply with any safety and health requirements required of employers under other law.

(b) A day labor employer may not charge a day laborer for any safety equipment, clothing, or accessories required by the nature of the work, either by law, custom, or the requirements of the employer. [Sections 53.107-53.150 reserved for expansion] SUBCHAPTER D. ADMINISTRATIVE PENALTY

Sec. 53.151. ADMINISTRATIVE PENALTY. The commission may impose an administrative penalty against a day labor employer who violates a provision of this chapter. The enforcement of a penalty imposed under this section is governed by Subchapter F, Chapter 51, Occupations Code.

SECTION 2. This Act takes effect September 1, 2007.