By: Eiland H.B. No. 4099

A BILL TO BE ENTITLED

AN ACT

relating to authorizing payment to FSLA-exempt and FSLA-nonexempt state employees for unused compensatory time accrued during a disaster declared by the governor under Section 418.014, Government Code.

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

SECTION 1. Section 659.015, Government Code, is amended by amending Subsection (g) and adding Subsection (i) to read as follows:

Sec. 659.015. OVERTIME COMPENSATION FOR EMPLOYEES SUBJECT TO FAIR LABOR STANDARDS ACT. (a) This section applies only to a state employee who is subject to the overtime provisions of the federal Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.) and who is not an employee of the legislature, including an employee of the lieutenant governor, or of a legislative agency.

(b) The employee is entitled to compensation for overtime as provided by federal law and this section. To the extent that this section and federal law prescribe a different rule for the same circumstance, federal law controls without regard to whether this section or federal law prescribes a stricter rule.

(c) An employee who is required to work hours in excess of 40 hours in a workweek is entitled to compensation for the excess hours either by:

(1) the agency allowing or requiring the employee to take compensatory time off at the rate of 1-1/2 hours off for each hour of overtime; or

(2) at the discretion of the employing agency, in cases in which granting compensatory time off is impractical, the employee receiving pay for the overtime at the rate equal to 1-1/2 times the employee's regular rate of pay.

(d) Holidays or other paid leave taken during a workweek are not counted as hours worked in computing the number of overtime hours under Subsection (c) or (e).

(e) An employee may not accumulate more than 240 hours of overtime credit that may be taken as compensatory leave under Subsection (c)(1), except that an employee engaged in a public safety activity, an emergency response activity, or a seasonal activity may accumulate, in accordance with 29 U.S.C. Section 207(o)(3)(A), not more than 480 hours of overtime credit that may be taken as compensatory leave under Subsection (c)(1). An employee must be paid at the rate prescribed by Subsection (c)(2) for the number of overtime hours the employee works that cause the employee to exceed the amount of overtime credit the employee may accumulate. In this Subsection, "overtime credit" means the number of hours that is computed by multiplying the number of overtime hours worked by 1-1/2.

(f) When an employee does not work more than 40 hours in a workweek but the number of hours worked plus the number of hours of holiday or other paid leave taken during the workweek exceeds 40 hours, the employee is entitled to compensatory time off at the rate of one hour off for each of the excess hours. When an employee does work 40 or more hours in a workweek and in addition takes holiday or other paid leave during the workweek, and the total number of hours worked still exceeds 40 after subtracting the hours compensable under Subsections (c)-(e), the employee is entitled to compensatory time off at the rate of one hour off for each of the remaining hours in excess of 40. When an employee does not work more than 40 hours in a workweek and the number of hours worked plus the number of hours of holiday or other paid leave taken during the week does not exceed 40 hours, the employee may not accrue compensatory time for the week under this section.

(g) Compensatory time off to which an employee is entitled under Subsection (f) must be taken during the 12-month period following the end of the workweek in which the compensatory time was accrued or it lapses. An employee may not be paid for that compensatory time, except as provided by this subsection and Subsection (i). An [However, an] employee of an institution of higher education as defined by Section 61.003, Education Code, or an employee engaged in a public safety activity, including highway construction and maintenance or an emergency response activity, may be paid at the employee's regular rate of pay for that compensatory time if the employer determines that taking the compensatory time off would disrupt normal teaching, research, or other critical functions.

(h) Exceptions to the workweek overtime computation for public safety, emergency response, or seasonal situations shall be made in accordance with the federal Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.).

(i) A state employee who is subject to the overtime provisions of the federal Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.) may be paid for any unused compensatory time that was accrued under Subsection (f):

(1) for overtime work performed during a disaster declared by the governor under Section 418.014; or

(2) in the case of a person employed by a state mental health or mental retardation facility, when the employing agency determines that the taking of regular compensatory time off would be disruptive to normal business functions.

SECTION 2. Section 659.016, Government Code, is amended by amending Subsection (i) and adding Subsection (j) to read as follows:

Sec. 659.016. OVERTIME COMPENSATION FOR EMPLOYEES NOT SUBJECT TO FAIR LABOR STANDARDS ACT; REDUCTIONS IN PAY. (a) This section applies only to a state employee who is not subject to the overtime provisions of the federal Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.) and who is not an employee of the legislature, including an employee of the lieutenant governor, or of a legislative agency.

(b) When the sum of hours worked plus holiday or other paid leave taken by a full-time employee during a workweek exceeds 40 hours, and not otherwise, the employee may be allowed to accrue compensatory time for the number of hours that exceeds 40 hours. When the sum of hours worked plus holiday or other paid leave taken by a part-time employee during a workweek exceeds the number of hours that the part-time employee is designated to work during the workweek, and not otherwise, the employee may be allowed to accrue compensatory time for the number of hours that exceeds the number of hours that the employee is designated to work during the workweek.

(c) An employee who is exempt as an executive, professional, or administrative employee under 29 U.S.C. Section 213(a)(1) may be allowed compensatory time off during the 12-month period following the end of the workweek in which the time that exceeds 40 hours under Subsection (b) was accrued, at a rate not to exceed one hour of compensatory time off for each hour of time that exceeds 40 hours under Subsection (b) accrued.

(d) In accordance with 29 C.F.R. Section 541.118 and subject to that section's exceptions as described by this section, an employee who is exempt as an executive, professional, or administrative employee under 29 U.S.C. Section 213(a)(1) is entitled to receive full salary for any week in which the employee performs work without regard to the number of days and hours worked. This is also subject to the general rule that an employee need not be paid for any workweek in which the employee performs no work.

(e) A deduction may be made from the salary of an employee who is exempt as an executive, professional, or administrative employee under 29 U.S.C. Section 213 (a)(1) if:

(1) the employee is not at work for a full day or longer for personal reasons other than sickness, accident, jury duty, attendance as a witness at a judicial proceeding, or temporary military leave;

(2) the employee is not at work for a full day or longer because of sickness or disability, including sickness or disability covered by workers' compensation benefits, and the employee's paid sick leave or workers' compensation benefits have been exhausted;

(3) the deduction is a penalty imposed for a violation of a significant safety rule relating to prevention of serious danger in the workplace to other persons, including other employees; or

(4) in accordance with the special provisions applicable to executive, professional, or administrative employees of public agencies set forth in 29 C.F.R. Section 541.5d, the employee is not at work for less than one day for personal reasons or because of illness or injury and accrued leave is not used by the employee because:

(A) permission to use accrued leave was not sought or was denied;

(B) accrued leave has been exhausted; or

(C) the employee chooses to use leave without pay.

(f) In accordance with 29 C.F.R. Section 541.5d, a deduction from the pay of an executive, professional, or administrative employee because of an absence from work caused by a furlough related to the budget does not affect the employee's status as an employee paid on a salary basis, except for any workweek in which the furlough occurs and for which the employee's pay is accordingly reduced.

(g) If a deduction is made from an employee's salary in violation of United States Department of Labor regulations, the employee is entitled to reimbursement of the amount that should not have been deducted.

(h) An employee who is not subject to the federal Fair Labor Standards Act of 1938 under 29 U.S.C. Section 203(e)(2)(C) because the employee is a staff member, appointee, or immediate adviser of an elected officeholder may be allowed compensatory time off under the terms and conditions determined by the officeholder.

(i) Except as provided by Subsection (j), an [An] employee covered by this section may not be paid for any unused compensatory time.

(j) An employee who is exempt as an executive, professional, or administrative employee under 29 U.S.C. Section 213(a)(1) may be paid for any unused compensatory time that was accrued under Subsection (b):

(1) for overtime work performed during a disaster declared by the governor under Section 418.014; or

(2) in the case of a person employed by a state mental health or mental retardation facility, when the employing agency determines that the taking of regular compensatory time off would be disruptive to normal business functions.

Section 3. This Act takes effect September 1, 2009.