82S10418 KSD-D

By: Watson S.B. No. 40

A BILL TO BE ENTITLED

AN ACT

relating to the establishment and administration of the Texas Essential Workers Program.

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

SECTION 1. Subtitle B, Title 4, Labor Code, is amended by adding Chapter 314 to read as follows:

CHAPTER 314. TEXAS ESSENTIAL WORKERS PROGRAM

Sec. 314.001. PURPOSE. The purpose of this chapter is to develop and establish, in collaboration with the federal government, a Texas Essential Workers Program to provide an adequate, legal, and stable workforce for employers in this state who are experiencing a critical shortage in the availability of qualified workers, particularly in the industries of ranching, farming, dairy, food manufacturing, construction, landscaping, and restaurant and hotel services. The enactment of this chapter represents an effort to:

(1) recognize the need for additional workers in workforce shortage industries in this state;

(2) eliminate the exploitation of undocumented workers in this state;

(3) ensure the payment of taxes by all employers and employees in this state;

(4) increase national security in and the fiscal resources of this state; and

(5) improve the overall economy of this state.

Sec. 314.002. DEFINITIONS. In this chapter:

(1) "Department" means the Department of Public Safety of the State of Texas.

(2) "Eligible employer" means a person who:

(A) employs one or more employees in a workforce shortage industry in this state; and

(B) for a period of at least 30 days has been unable to find a sufficient number of qualified workers who are authorized to be employed in the United States to meet the employer's workforce needs.

(3) "Foreign worker" means a person who is approved by the commission as eligible to provide labor to a participating eligible employer under the program.

(4) "Program" means the Texas Essential Workers Program established under this chapter.

(5) "Workforce shortage industry" means the agriculture and dairy industries and other industries in this state designated by the commission under this chapter as experiencing a critical shortage in the availability of workers.

Sec. 314.003. RULES. The commission shall adopt rules necessary to administer this chapter.

Sec. 314.004. PROGRAM ESTABLISHMENT AND ADMINISTRATION. (a) The commission shall establish and administer the Texas Essential Workers Program to enable participating eligible employers to employ qualified foreign workers. In establishing the program, the commission shall conduct outreach to and solicit information from employers in this state to determine:

(1) which industries should be designated as workforce shortage industries under this chapter; and

(2) the number of foreign workers that would be sufficient to meet the workforce needs of employers in those industries.

(b) Based on the commission's findings under Subsection (a), the commission shall petition the federal government for the temporary admission into this country under H2-A and H2-B visas of a sufficient number of foreign workers to meet the workforce needs of eligible employers in this state.

(c) As a part of the program, the commission shall:

(1) establish a system for the recruitment and referral of local workers for available workforce shortage industry jobs in this state; and

(2) require participating eligible employers to attempt to hire employees using that system before hiring foreign workers.

(d) To the extent permitted by federal law, the commission, the governor, and the secretary of state may jointly enter into agreements between this state and foreign countries to facilitate the recruitment and selection of eligible foreign workers for participation in the program and the approval for participation in the program of the workers by participating eligible employers. The commission shall:

(1) prescribe eligibility criteria for any person recruiting foreign workers under the program; and

(2) maintain a list of recruiters approved by the commission as satisfying that criteria.

Sec. 314.005. REQUIREMENTS FOR PARTICIPATING ELIGIBLE EMPLOYERS. (a) To participate in the program, an eligible employer must:

(1) submit to the commission:

(A) an application, in the form and manner prescribed by the commission; and

(B) a signed, sworn affidavit attesting that during the 30-day period immediately preceding the date of the employer's application, the employer was unable to find a sufficient number of qualified workers authorized to work in the United States to meet the employer's workforce needs; and

(2) pay a fee in the amount prescribed by the commission.

(b) The application prescribed by the commission under Subsection (a) must require the employer to provide:

(1) the employer's name, address, federal income tax identification number, and industry;

(2) a detailed description of:

(A) the workforce shortage the employer is experiencing; and

(B) the measures the employer has taken to identify and recruit local workers equipped with the skills necessary to meet the employer's workforce needs; and

(3) any other information the commission considers appropriate.

(c) The commission shall review an employer's application and, not later than the 30th day after the date the commission receives the application, notify the employer regarding whether the commission has approved the employer's application for participation in the program.

(d) On receipt of notice from the commission that the commission has approved the employer's application, a participating eligible employer, subject to any limitations or requirements prescribed by this chapter or rules adopted under this chapter, may:

(1) recruit foreign workers at any United States consulate; and

(2) enter into employment contracts for the temporary employment of foreign workers.

(e) An employment contract between a participating eligible employer and a foreign worker must provide that the worker will be employed for at least three-fourths of each work day during the contract period.

(f) Each participating employer who employs a foreign worker under the program shall:

(1) provide the worker a copy of the employment contract between the employer and the worker in the worker's native language;

(2) pay the worker at least twice each month;

(3) pay wages to the worker that are in compliance with the federal Immigration Reform and Control Act of 1986 (8 U.S.C. Section 1101 et seq.);

(4) provide to the worker, without charge:

(A) housing that meets safety and health standards established by federal law;

(B) transportation between the worker's local housing and the worksite;

(C) workers' compensation coverage; and

(D) all tools, supplies, and equipment required to perform the worker's assigned duties;

(5) provide to the worker:

(A) three low-cost meals each day, the cost of which must be disclosed in the worker's employment contract; or

(B) free cooking and kitchen facilities;

(6) make available to the worker English as a second language classes;

(7) after the expiration of half of the worker's employment contract period, promptly reimburse the worker for any costs incurred by the worker for transportation and subsistence from the site of recruitment to the employer's place of employment;

(8) after the expiration of the worker's employment contract, promptly pay for the costs of return transportation and subsistence to the site of the worker's recruitment; and

(9) provide any other employees of the employer who perform the same job as the foreign worker with the same benefits, wages, and working conditions as the employer provides the foreign worker.

(g) The commission may inspect housing described by Subsection (f)(4)(A).

Sec. 314.006. FOREIGN WORKER APPLICATION. The commission shall prescribe the form and content of an application to be used by any person seeking to participate in the program as a foreign worker. The application must require the applicant to provide the applicant's name, photograph, fingerprints, and any other information the commission considers appropriate.

Sec. 314.007. PARTICIPATION REQUIREMENTS FOR FOREIGN WORKER. (a) To be eligible to participate in the program as a foreign worker, a person must:

(1) complete a foreign worker application at the United States consulate in the person's country of origin;

(2) be approved by the commission after passing:

(A) a criminal history record information check conducted by the appropriate authorities in the person's country of origin; and

(B) a federal and state criminal history record information check conducted by the department under Section 314.009; and

(3) have been issued a current H2-A or H2-B visa.

(b) For purposes of Subsection (a)(2)(A), the employer seeking to hire the person must obtain a copy of the results of the criminal history record information check conducted by the appropriate authorities in the person's country of origin and submit the results to the commission. The employer shall pay any fee charged for obtaining that information.

(c) A person may not participate in the program as a foreign worker if the person has been convicted of:

(1) any crime in the United States; or

(2) a crime in the foreign worker's country of origin that would have been classified as a Class A misdemeanor or a felony in this state.

(d) A participating foreign worker may not file for or receive unemployment insurance benefits.

Sec. 314.008. FOREIGN WORKER FAMILY MEMBERS. (a) A family member of a foreign worker may participate in the program only if the family member meets the requirements of Section 314.007.

(b) A foreign worker may not transport a family member into this state unless the family member has proper federal authorization.

Sec. 314.009. CRIMINAL HISTORY RECORD INFORMATION CHECK. The department shall conduct a state and federal criminal history record information check to determine the eligibility of each person who applies to participate in the program as a foreign worker. The employer seeking to employ the person shall be charged a fee for the criminal history record information check.

Sec. 314.010. ISSUANCE OF TEMPORARY WORKER LEGAL IDENTIFICATION CARDS TO FOREIGN WORKERS BY DEPARTMENT. (a) The department shall issue to each foreign worker a temporary worker legal identification card under this section. The identification card must:

(1) be non-forgeable;

(2) indicate the date on which the foreign worker's authorized presence in this state expires; and

(3) meet any other requirements prescribed by federal law.

(b) The department shall prescribe the fee for the issuance of an identification card under this section. The fee shall be paid by the participating eligible employer who employs the foreign worker.

(c) The identification card shall be issued to the participating eligible employer employing the foreign worker who shall then provide the card to the foreign worker. A participating employer shall return the identification card to the department as soon as practicable after:

(1) the date the foreign worker's approved presence in this state expires; or

(2) the date the employer revokes the identification card from the worker under Subsection (d).

(d) A participating eligible employer shall revoke the identification card of a foreign worker employed by the employer if:

(1) the foreign worker is absent from work without approval for more than 13 consecutive days;

(2) the employer is unable to locate the foreign worker for more than six days;

(3) the employer determines that the foreign worker has traveled outside of this state;

(4) the foreign worker is convicted of a crime in this state;

(5) the foreign worker is no longer employed by the employer; or

(6) the foreign worker gives, sells, or lends the worker's identification card to another person for the purpose of obtaining employment.

(e) A participating eligible employer who fails to return an identification card to the department as required by Subsection (c) is ineligible to participate in the program.

(f) The department shall maintain a database of foreign workers to whom the department has issued an identification card under this section.

(g) Any essential documents provided to a foreign worker by the department must be provided in the foreign worker's native language.

(h) An identification card issued under this section is valid for two years. The department shall adopt a procedure for the renewal of an identification card issued under this section.

(i) The department, in consultation with the commission, shall adopt rules for the administration of this section.

SECTION 2. Section 411.104, Government Code, is amended by adding Subsection (b-1) and amending Subsections (c) and (e) to read as follows:

(b-1) The Texas Workforce Commission is entitled to obtain from the department criminal history record information maintained by the department that relates to a person who is:

(1) an applicant seeking to participate as a foreign worker in the Texas Essential Workers Program under Chapter 314, Labor Code; or

(2) a foreign worker participating in that program.

(c) Criminal history record information obtained by the commission under Subsection (b) or (b-1) may not be released or disclosed to any person except on court order or with the written consent of the person who is the subject of the criminal history record information.

(e) The commission shall destroy the criminal history record information of:

(1) an applicant for a security sensitive position who is not hired; or

(2) a person described by Subsection (b-1), after the commission has determined the person's initial or continued eligibility to participate in the program described by that subsection.

SECTION 3. (a) The Texas Workforce Commission and Department of Public Safety of the State of Texas may implement Chapter 314, Labor Code, as added by this Act, only if the federal government authorizes this state to implement an essential workers program or similar program.

(b) If the federal government authorizes this state to implement an essential workers program or similar program, the Texas Workforce Commission and Department of Public Safety of the State of Texas, as soon as practicable after the date the program is authorized, shall adopt rules for the administration of Chapter 314, Labor Code, as added by this Act.

(c) The attorney general shall monitor federal legislation for the purposes of this section.

SECTION 4. This Act takes effect on the 91st day after the last day of the legislative session.