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A BILL TO BE ENTITLED
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AN ACT
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relating to employment leave to comply with certain family or |
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medical obligations; providing a civil penalty. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subtitle D, Title 2, Labor Code, is amended by |
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adding Chapter 85 to read as follows: |
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CHAPTER 85. EMPLOYEE LEAVE FOR FAMILY OR MEDICAL OBLIGATIONS |
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SUBCHAPTER A. GENERAL PROVISIONS |
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Sec. 85.001. DEFINITIONS. In this chapter: |
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(1) "Child" means a biological child, adopted or |
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foster child, stepchild, legal ward, or child of a person standing |
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in loco parentis who is: |
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(A) under 18 years of age; or |
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(B) 18 years of age or older and incapable of |
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self-care because of a physical or mental disability or serious |
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health condition. |
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(2) "Commission" means the Texas Workforce |
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Commission. |
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(3) "Employee" means an individual who performs |
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services for an employer for compensation under an oral or written |
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contract of hire, whether express or implied. The term does not |
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include an independent contractor. |
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(4) "Employer" means a person who employs employees. |
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The term includes a public employer. |
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(5) "Employment benefits" means all benefits provided |
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by or made available to employees by an employer. The term includes |
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group life insurance, health insurance, disability insurance, sick |
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leave, annual leave, educational benefits, and pensions whether the |
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benefits are provided by a practice or written policy of an employer |
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or through an employee benefit plan. |
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(6) "Grandparent" means the parent of a parent of an |
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employee. |
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(7) "Grandparent-in-law" means the parent of a parent |
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of an employee's spouse. |
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(8) "Health care provider" means: |
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(A) a licensed individual who provides or renders |
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health care; or |
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(B) an unlicensed individual who provides or |
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renders health care under the direction or supervision of a |
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physician. |
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(9) "Parent" means: |
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(A) the biological parent of an employee; or |
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(B) an individual who stood in loco parentis to |
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an employee when the employee was a child. |
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(10) "Parent-in-law" means the parent of an employee's |
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spouse. |
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(11) "Serious health condition" means an illness, |
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injury, impairment, or physical or mental condition that requires |
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inpatient care in a hospital, hospice, or residential medical care |
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facility or continuing treatment by a health care provider. The |
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term includes a serious disease such as cancer or acquired immune |
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deficiency syndrome. |
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[Sections 85.002-85.050 reserved for expansion] |
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SUBCHAPTER B. FAMILY AND MEDICAL LEAVE |
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Sec. 85.051. APPLICATION OF SUBCHAPTER. This subchapter |
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applies to each employer who employs 50 or more employees in this |
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state. |
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Sec. 85.052. FAMILY AND MEDICAL LEAVE. An eligible |
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employee is entitled to use the employee's choice of accrued paid |
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sick leave or other accrued paid leave to care for the following |
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individuals: |
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(1) the employee's child; |
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(2) the employee's spouse; |
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(3) the employee's parent or parent-in-law; or |
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(4) the employee's grandparent or grandparent-in-law. |
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Sec. 85.053. NOTICE; CIVIL PENALTY. (a) Each employer |
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shall post in conspicuous places on the premises of the employer |
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where notices to employees and applicants for employment are |
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customarily posted a notice, prepared or approved by the |
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commission, setting forth the pertinent provisions of this |
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subchapter and information relating to the enforcement of this |
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subchapter. |
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(b) An employer who wilfully violates this subsection is |
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liable for a civil penalty not to exceed $100 for each violation. |
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The attorney general may bring an action to collect a civil penalty |
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under this section. Civil penalties assessed under this section |
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shall be deposited in the general revenue fund. |
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Sec. 85.054. INSTITUTION OF PAID LEAVE PROGRAM NOT |
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REQUIRED. This subchapter does not require an employer who does |
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not provide paid sick leave or other paid medical leave to institute |
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a program of paid leave for any situation in which that employer is |
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not normally providing paid leave. |
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Sec. 85.055. FORESEEABILITY OF LEAVE; NOTICE TO EMPLOYER. |
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(a) If the necessity for leave under Section 85.052 is reasonably |
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foreseeable, the affected employee shall provide notice to the |
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employer as is practicable. |
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(b) If the necessity for leave under Section 85.052 is |
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foreseeable because of planned medical treatment, the employee |
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shall make a reasonable effort to schedule the treatment to avoid |
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disrupting unduly the operations of the employer, subject to the |
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approval of the health care provider of the employee or of the |
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child, spouse, or parent of the employee, as applicable. |
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Sec. 85.056. CERTIFICATION. (a) An employer may require |
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that a request for leave under Section 85.052 be certified by the |
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health care provider of the employee or of the child, spouse, |
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parent, parent-in-law, grandparent, or grandparent-in-law of the |
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employee, as appropriate. The employee shall provide, in a timely |
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manner, a copy of the certification to the employer. |
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(b) Certification provided under Subsection (a) is |
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sufficient if it states: |
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(1) the date on which the serious health condition |
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began; |
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(2) the probable duration of the condition; |
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(3) the appropriate medical facts within the knowledge |
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of the health care provider regarding the condition; and |
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(4) a statement that the eligible employee is needed |
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to care for the child, spouse, parent, parent-in-law, grandparent, |
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or grandparent-in-law and an estimate of the amount of time that the |
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employee is needed to care for that individual. |
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Sec. 85.057. EMPLOYMENT AND BENEFITS PROTECTION; |
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EXCEPTION. (a) An employee who takes leave under Section 85.052 is |
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entitled, on return from the leave, to reinstatement in the former |
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position of employment or an equivalent position of employment with |
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equivalent employment benefits, pay, and other terms and conditions |
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of employment. |
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(b) Leave taken under Section 85.052 may not result in the |
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loss of any employment benefit accrued before the date on which the |
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leave began. |
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(c) This section does not entitle an employee who is |
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reinstated in employment to: |
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(1) the accrual of seniority or other employment |
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benefits during any period of leave; or |
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(2) any right, benefit, or position of employment |
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other than any right, benefit, or position to which the employee |
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would have been entitled had the employee not taken the leave. |
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(d) This section does not prohibit an employer from |
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requiring an employee on leave under Section 85.052 to report |
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periodically to the employer on the status and intention of the |
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employee to return to work. |
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Sec. 85.058. COMMISSION POWERS AND DUTIES. The commission |
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shall adopt rules as necessary to implement this subchapter. |
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Sec. 85.059. PROHIBITED ACTS. (a) An employer may not |
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interfere with, restrain, or deny the exercise of or the attempt to |
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exercise any right provided under this subchapter. |
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(b) An employer may not discharge or otherwise discriminate |
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against an individual for opposing a practice made unlawful by this |
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subchapter. |
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(c) A person may not discharge or otherwise discriminate |
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against an individual because that individual has: |
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(1) filed a charge, or instituted or caused to be |
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instituted a proceeding, under or related to this subchapter; |
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(2) given, or is about to give, any information in |
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connection with an inquiry or proceeding relating to a right |
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provided under this subchapter; or |
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(3) testified, or is about to testify, in an inquiry or |
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proceeding relating to a right provided under this subchapter. |
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Sec. 85.060. ENFORCEMENT. (a) An employer who violates |
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Section 85.059 is liable to an affected individual for damages |
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equal to the amount of: |
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(1) any wages, salary, employment benefits, or other |
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compensation denied or lost to the individual by reason of the |
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violation or, if wages, salary, employment benefits, or other |
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compensation has not been denied or lost, any actual monetary |
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losses sustained by the individual as a direct result of the |
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violation, including the cost of providing necessary care, not to |
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exceed an amount equal to the individual's wages or salary for 12 |
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weeks; |
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(2) interest on the amount determined under |
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Subdivision (1) computed at the prevailing rate of interest on |
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judgments; and |
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(3) an additional amount as liquidated damages equal |
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to the sum of the amount determined under Subdivision (1) and the |
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interest determined under Subdivision (2). |
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(b) If an employer who has violated Section 85.059 proves to |
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the satisfaction of the court that the act or omission that violated |
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Section 85.059 was in good faith and that the employer had |
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reasonable grounds for believing that the act or omission was not a |
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violation, the court may reduce the amount of damages to the amount |
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determined under Subsections (a)(1) and (2). |
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(c) The employer is also liable for equitable relief as |
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appropriate, including employment, reinstatement, and promotion. |
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(d) An action to recover damages or equitable relief under |
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this section may be maintained by any one or more individuals for |
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and on behalf of those individuals. |
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(e) In addition to any judgment awarded to the plaintiff, |
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the court may require the defendant to pay reasonable attorney's |
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fees, reasonable expert witness fees, and other costs. |
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(f) Unless the action is dismissed without prejudice on |
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motion of the commission, the right to bring an action under this |
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section terminates on: |
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(1) the filing of a complaint by the commission in an |
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action under Subsection (j) in which: |
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(A) restraint is sought of any further delay in |
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the payment of the damages described in Subsection (a); or |
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(B) equitable relief is sought as a result of |
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alleged violations of Section 85.059; or |
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(2) the filing of a complaint by the commission in an |
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action under Subsection (h) in which a recovery is sought of the |
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damages described in Subsection (a). |
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(g) The commission shall receive, investigate, and attempt |
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to resolve complaints of violations under Section 85.059 in the |
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same manner that the commission receives, investigates, and |
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attempts to resolve complaints of violations under Chapter 61. |
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(h) The commission may bring an action to recover on behalf |
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of an individual the damages described in Subsection (a). Any |
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amount recovered by the commission on behalf of an individual under |
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this subsection shall be held in a special deposit account and shall |
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be paid, on order of the commission, directly to the individual. Any |
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amount not paid to the individual within three years of receipt |
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because of inability to make the payment shall be deposited in the |
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state treasury to the credit of the general revenue fund. |
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(i) Except as otherwise provided by this subsection, an |
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action must be brought under this section not later than the second |
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anniversary of the date of the last event constituting the alleged |
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violation for which the action is brought. If the action alleges a |
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wilful violation of Section 85.059, the action must be brought not |
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later than the third anniversary of the date of the last event |
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constituting the alleged violation. For the purposes of this |
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subsection, an action is begun by the commission under Subsection |
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(h) on the date on which the complaint is filed under Subsection |
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(g). |
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(j) In addition to an action to recover damages, the |
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commission may bring an action to restrain violations of Section |
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85.059, including an action to restrain the withholding of payment |
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of wages, salary, employment benefits, or other compensation, plus |
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interest, found by the court to be due to eligible employees. |
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SECTION 2. (a) This Act applies only to a suspension, |
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termination, or other adverse employment action that is taken by an |
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employer against an employee because of an employee absence |
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authorized under Chapter 85, Labor Code, as added by this Act, that |
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occurs on or after January 1, 2008. Action taken by an employer |
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against an employee for an employee absence occurring before |
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January 1, 2008, is governed by the law in effect immediately before |
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the effective date of this Act, and the former law is continued in |
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effect for that purpose. |
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(b) An employee is not entitled to take leave as provided by |
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Chapter 85, Labor Code, as added by this Act, before January 1, |
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2008. |
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(c) The Texas Workforce Commission shall adopt rules and |
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prescribe notices and forms as required by Chapter 85, Labor Code, |
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as added by this Act, not later than November 1, 2007. |
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SECTION 3. This Act takes effect September 1, 2007. |