By: Arévalo H.B. No. 391

A BILL TO BE ENTITLED

AN ACT

relating to employee rights and protections; providing a civil penalty.

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

ARTICLE 1. SHORT TITLE, PREAMBLE, AND FINDINGS

SECTION 1.01. SHORT TITLE. This Act shall be known as the Texas Fair Shot Act.

SECTION 1.02. PREAMBLE. In order to improve the lives of all Texans, the Legislature should pass significant legislation that promises a fair shot for everyone. Advancing economic opportunity and protecting the rights of workers includes increasing the minimum wage, securing paid family leave for all Texans, fighting against wage theft, and addressing the glaring pay gap between male and female workers in Texas.

SECTION 1.03. FINDINGS. Texas' minimum wage law is tied to the federal minimum wage. The current federal minimum wage of $7.25 per hour is not enough pay for Texans to provide for their families. In the absence of an increased federal minimum wage, it is the responsibility of the Texas Legislature to ensure that all Texans earn a livable wage. A wage of $15 per hour can help guarantee if a Texan is working a full-time job, he or she will be able to afford rent, food, child care, health care, and other critical necessities. With more money in their pockets, Texas workers will spend more on goods and services, generating greater economic activity for all.

Eight out of every ten workers in Texas has no access to paid family leave. Without it, moms and dads are forced to go back to work too soon after the birth of their child. Having to choose between providing for one's family and spending time with a newborn is a choice no Texan should have to make. The Legislature finds that ensuring all Texas workers have at least eight weeks of paid family leave upon the birth, adoption, or placement of a child will help individual Texans live more fulfilling lives, encourage them to stay in their job, and provide for more stability in the Texas economy overall.

In Texas, it is not uncommon for workers, particularly low-income workers, to be robbed of their wages. Whether it is through misclassifying workers, failing to reimburse workers for overtime work, or altogether not paying employees, the Texas Legislature cannot allow employers to continue committing wage theft. It is the responsibility of the Texas Legislature to ensure that Texas workers are being justly paid for the work they are doing.

All Texas workers should be treated equally when it comes to pay. Yet, women are paid only 79 cents for every dollar a man earns. That figure is worse for women of color: 59 cents for Black women and 44 cents for Hispanic women. The legislature should ensure that female workers are not experiencing discrimination in their wages, and pursue policies that combat discrimination and openness so that Texans who working hard are properly and equally valued for their work.

ARTICLE 2. DISCRIMINATION IN PAYMENT OF COMPENSATION

SECTION 2.01. Subchapter C, Chapter 21, Labor Code, is amended by adding Section 21.1061 to read as follows:

Sec. 21.1061. SEX DISCRIMINATION IN COMPENSATION. For purposes of this chapter, a violation of Chapter 24 is considered to be discrimination on the basis of sex.

SECTION 2.02. Section 21.202(a), Labor Code, is amended to read as follows:

(a) A complaint under this subchapter must be filed not later than the 180th day after the date the alleged unlawful employment practice occurred. With respect to an allegation of discrimination in payment of compensation in violation of this chapter, an unlawful employment practice occurs each time:

(1) a discriminatory compensation decision or other practice is adopted;

(2) an individual becomes subject to a discriminatory compensation decision or other practice; or

(3) an individual is adversely affected by application of a discriminatory compensation decision or other practice, including each time wages affected wholly or partly by the decision or other practice are paid.

SECTION 2.03. Section 21.258, Labor Code, is amended by adding Subsection (d) to read as follows:

(d) Liability may accrue, and an aggrieved person may obtain relief as provided by this subchapter, including recovery of back pay for the period allowed under this section, if the unlawful employment practices that have occurred during the period for filing a complaint are similar or related to unlawful employment practices with regard to discrimination in payment of compensation that occurred outside the period for filing a complaint.

SECTION 2.04. Subtitle A, Title 2, Labor Code, is amended by adding Chapter 24 to read as follows:

CHAPTER 24. EMPLOYMENT DISCRIMINATION REGARDING COMPENSATION

Sec. 24.001. DEFINITIONS. In this chapter:

(1) "Applicant" means a person who has made an oral or written application with an employer, or has sent a resume or other correspondence to an employer, indicating an interest in employment.

(2) "Commission" means the Texas Workforce Commission.

(3) "Employee" and "employer" have the meanings assigned by Section 21.002.

(4) "Wages" has the meaning assigned by Section 61.001.

Sec. 24.002. EMPLOYER INQUIRIES INTO AND CONSIDERATION OF WAGE HISTORY INFORMATION. (a) An employer may not:

(1) include a question regarding an applicant's wage history information on an employment application form;

(2) inquire into or consider an applicant's wage history information; or

(3) obtain an applicant's wage history information from a previous employer of the applicant, unless the wages in that previous employment position are subject to disclosure under Chapter 552, Government Code.

(b) Notwithstanding Subsection (a), an applicant may provide written authorization to a prospective employer to confirm the applicant's wage history, including benefits or other compensation, only after the prospective employer has made a written offer of employment to the applicant that includes the applicant's wage and benefit information for the position.

Sec. 24.003. PROHIBITION AGAINST DISCRIMINATION IN WAGES. (a) For purposes of this section, "business necessity" means an overriding legitimate business purpose such that the factor relied upon in determining wage differential effectively fulfills the business purpose the factor is intended to serve.

(b) An employer commits an unlawful employment practice in violation of this chapter and Chapter 21 if the employer discriminates among employees on the basis of sex by paying wages to an employee at a rate less than the rate at which the employer pays wages to another employee of the opposite sex for the same or substantially similar work on jobs, the performance of which requires equal or substantially similar skill, effort, and responsibility, and which are performed under similar working conditions, except where the payment is made under one of the following factors:

(1) a seniority system;

(2) a merit system;

(3) a system that measures earnings by quantity or quality of production; or

(4) a differential based on a bona fide factor other than sex.

(c) A seniority system described by Subsection (b)(1) may not deduct from the employee's service time any leave that the employee took under the Family and Medical Leave Act of 1993 (29 U.S.C. Section 2601 et seq.) or other applicable family or medical leave to which the employee is entitled.

(d) The exception provided by Subsection (b)(4) applies only if the employer demonstrates that the factor:

(1) is not based on or derived from a differential based on sex in compensation;

(2) is related to the position in question; and

(3) is consistent with business necessity.

(e) Notwithstanding Subsection (d), the exception provided by Subsection (b)(4) does not apply if the employee demonstrates that an alternative business practice exists that would serve the same business purpose without producing a wage differential.

(f) An employer may not enter into an agreement with an employee that provides that the employer may pay the employee a wage at a rate that is in violation of this section.

Sec. 24.004. OTHER PROHIBITED ACTS. (a) An employer commits an unlawful employment practice in violation of this chapter and Chapter 21 if the employer:

(1) takes an adverse action or otherwise discriminates against a person because the person has:

(A) opposed an act or practice made unlawful by this chapter;

(B) sought to enforce rights protected under this chapter; or

(C) testified, assisted, or participated in any manner in an investigation, hearing, or other proceeding to enforce this chapter; or

(2) discharges or in any other manner discriminates against, coerces, intimidates, threatens, or interferes with an employee or other person because the person:

(A) inquired about, disclosed, compared, or otherwise discussed an employee's wages; or

(B) exercised or enjoyed, or aided or encouraged another person to exercise or enjoy, any right granted or protected by this chapter.

(b) This section does not require an employee to disclose the employee's wages.

Sec. 24.005. NOTICE BY EMPLOYER REQUIRED. Each employer shall post in conspicuous places on the premises of the employer where notices to employees and applicants for employment are customarily posted a notice, prepared or approved by the commission, setting forth the pertinent provisions of this chapter and information relating to the enforcement of this chapter.

Sec. 24.006. COMPLAINT; ENFORCEMENT. (a) A person aggrieved by an unlawful employment practice under this chapter may file a complaint with the commission. A complaint filed under this section is subject to Subchapters E and F, Chapter 21.

(b) The commission shall enforce this chapter in accordance with Chapter 21.

Sec. 24.007. EMPLOYER SELF-EVALUATION; AFFIRMATIVE DEFENSE. (a) An employer is encouraged to periodically perform a self-evaluation of the employer's business practices and compensation to ensure that the employer is in compliance with this chapter.

(b) In a civil action filed under Subchapter F, Chapter 21, by a person aggrieved by an unlawful employment practice under this chapter, it is an affirmative defense to liability for compensatory or punitive damages under Section 21.2585 that:

(1) the employer performed a self-evaluation of the employer's business practices and compensation in the three-year period preceding the date of the conduct that is the basis of the complaint; and

(2) the employer has in good faith demonstrated that, following the date of the evaluation under Subdivision (1), the employer has made reasonable progress toward eliminating compensation differentials based on sex.

(c) This section does not require an employer to perform a self-evaluation or subject an employer to any penalty for failing to perform a self-evaluation.

Sec. 24.008. WAGE RECORDS REQUIREMENT. Each employer shall compile and maintain for a period of at least three years records that contain:

(1) the wage paid to each employee; and

(2) the method, system, computations, and other factors used to establish, adjust, and determine the wage rates paid to the employee.

SECTION 2.05. The changes in law made by this article apply only to an unlawful employment practice with regard to discrimination in payment of compensation that occurs on or after the effective date of this Act.

ARTICLE 3. CLAIMS FOR UNPAID WAGES

SECTION 3.01. Subchapter B, Chapter 61, Labor Code, is amended by adding Sections 61.021 and 61.022 to read as follows:

Sec. 61.021. EMPLOYER RETALIATION PROHIBITED; CAUSE OF ACTION. (a) An employer may not suspend or terminate the employment of or in any other manner discipline, discriminate against, or retaliate against an employee who in good faith seeks to recover wages owed to the employee by:

(1) filing a complaint with a governmental entity;

(2) seeking or accepting the assistance of a nonprofit organization, an employee rights organization, or an attorney;

(3) exercising or attempting to exercise a right or remedy granted to the employee by a contract, local ordinance or order, or federal or state law; or

(4) filing a wage claim under Subchapter D.

(b) An employee who is the subject of an adverse employment action prohibited under Subsection (a) may bring suit against the employer, including an action in a district court for appropriate injunctive relief.

(c) An employee who prevails in a suit brought under this section:

(1) may recover:

(A) reasonable damages incurred by the employee as a result of the adverse employment action;

(B) additional damages in an amount equal to the greater of $1,000 or the amount of actual damages incurred as a result of the adverse employment action; and

(C) court costs and reasonable attorney's fees incurred by the employee in the suit; and

(2) is entitled to:

(A) reinstatement to the employee's former position or a position that is comparable in terms of compensation, benefits, and other conditions of employment; and

(B) reinstatement of any benefits and seniority rights lost because of the adverse employment action.

Sec. 61.022. COMPLAINTS. (a) A person who has reason to believe that an employer has violated Section 61.021 may file a complaint with the commission.

(b) On receipt of a complaint, the commission shall investigate and dispose of the complaint in the same manner as a wage claim under Subchapter D. The commission may incorporate the investigation into any ongoing investigation of an underlying wage claim filed by the employee, if applicable.

(c) The commission shall ensure that information regarding the complaint process is available on the commission's Internet website.

SECTION 3.02. Section 61.051(c), Labor Code, is amended to read as follows:

(c) A wage claim must be filed not later than the second anniversary of [180th day after] the date the wages claimed became due for payment. The filing [180-day] deadline is a matter of jurisdiction.

SECTION 3.03. Section 61.053, Labor Code, is amended by amending Subsection (a) and adding Subsection (a-1) to read as follows:

(a) If the commission examiner, a wage claim appeal tribunal, or the commission determines that an employer acted in bad faith in not paying wages as required by this chapter, the examiner, tribunal, or commission, in addition to ordering the payment of the wages, shall [may] assess an administrative penalty against the employer.

(a-1) For purposes of Subsection (a), acts that constitute bad faith by an employer include:

(1) a history of previous violations of this chapter;

(2) failure to pay wages to an employee as required by this chapter as an act of discrimination or retaliation against the employee;

(3) failure to pay wages as required by this chapter to multiple employees at the same time;

(4) failure to pay wages to an employee as required by this chapter knowing that the failure was a violation of state law; or

(5) actions showing reckless disregard of the requirements of this chapter.

SECTION 3.04. Subchapter D, Chapter 61, Labor Code, is amended by adding Section 61.0531 to read as follows:

Sec. 61.0531. RETALIATION; DAMAGES. (a) If after an investigation of a complaint under Section 61.022 the commission examiner, a wage claim appeal tribunal, or the commission determines that an employer violated Section 61.021(a), the examiner, tribunal, or commission shall order the employer to pay to the employee damages in an amount equal to the greater of $1,000 or the amount of wages owed to the employee.

(b) Damages under Subsection (a) are in addition to any payment of wages ordered under this subchapter.

SECTION 3.05. The heading to Section 61.058, Labor Code, is amended to read as follows:

Sec. 61.058. HEARING PROCEDURES; PRESUMPTION.

SECTION 3.06. Section 61.058, Labor Code, is amended by amending Subsection (a) and adding Subsections (c) and (d) to read as follows:

(a) Except as provided by Subsections (c) and (d), a [A] hearing conducted under this subchapter is subject to the rules and hearings procedures used by the commission in the determination of a claim for unemployment compensation benefits.

(c) In a hearing under this subchapter, an employer's failure to comply with Section 62.003 or the recordkeeping requirements of the Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.) applicable to an employee creates a rebuttable presumption that the employee's hours worked, pay rate, and earnings are equal to those amounts provided in the employee's testimony or records presented at the hearing.

(d) A presumption under Subsection (c) may be rebutted by clear and convincing evidence provided by the employer of the employee's hours worked, pay rate, and earnings.

SECTION 3.07. Not later than March 1, 2018, the Texas Workforce Commission shall adopt rules necessary to implement Section 61.022, Labor Code, as added by this article.

SECTION 3.08. Sections 61.021 and 61.022, Labor Code, as added by this article, apply only to an adverse employment action that is taken by an employer against an employee on or after the effective date of this Act. An adverse employment action taken before that date is governed by the law in effect on the date the action was taken, and the former law is continued in effect for that purpose.

SECTION 3.09. Section 61.051, Labor Code, as amended by this article, applies to a wage claim filed under Subchapter D, Chapter 61, Labor Code, for wages that become due for payment on or after June 4, 2017. A wage claim for wages that became due for payment before that date is governed by the law in effect immediately before the effective date of this Act, and the former law is continued in effect for that purpose.

SECTION 3.10. Section 61.053(a), Labor Code, as amended by this article, and Section 61.0531, Labor Code, as added by this article, apply only to conduct that occurs on or after the effective date of this Act. Conduct that occurs before that date is governed by the law in effect on the date the conduct occurred, and the former law is continued in effect for that purpose.

SECTION 3.11. Section 61.058, Labor Code, as amended by this article, applies only to a hearing that commences on or after the effective date of this Act. A hearing that commences before that date is governed by the law in effect on the date the hearing commenced, and the former law is continued in effect for that purpose.

ARTICLE 4. MINIMUM WAGE

SECTION 4.01. Section 62.051, Labor Code, is amended to read as follows:

Sec. 62.051. MINIMUM WAGE. Except as provided by Section 62.057, an employer shall pay to each employee not less than the greater of:

(1) $15.00 an hour; or

(2) the federal minimum wage under Section 6, Fair Labor Standards Act of 1938 (29 U.S.C. Section 206).

SECTION 4.02. Section 62.151, Labor Code, is repealed.

ARTICLE 5. FAMILY CARE LEAVE

SECTION 5.01. Subtitle D, Title 2, Labor Code, is amended by adding Chapter 83 to read as follows:

CHAPTER 83. FAMILY CARE LEAVE

Sec. 83.001. DEFINITIONS. In this chapter:

(1) "Child" means a person:

(A) who is a biological, adopted, or foster child, a stepchild, or a legal ward of an employee; or

(B) for whom the employee stands in loco parentis.

(2) "Commission" means the Texas Workforce Commission.

(3) "Employee" means an individual who performs services for an employer for compensation under an oral or written contract of hire, whether express or implied. The term does not include an independent contractor.

(4) "Employer" means a person who employs 10 or more employees in this state.

Sec. 83.002. FAMILY CARE LEAVE. (a) An employee who has been employed by an employer for at least six months is eligible for family care leave for a period of eight weeks due to:

(1) the birth of the employee's child; or

(2) the placement of a child with the employee in connection with the adoption or foster care of the child by the employee.

(b) Eligibility for leave under this chapter expires on the first anniversary of the date of the child's birth or placement with the employee, as applicable.

Sec. 83.003. INELIGIBILITY OF CERTAIN EMPLOYEES FOR LEAVE. An employee is not eligible for leave under this chapter with respect to any day for which the employee receives:

(1) benefits under a law providing unemployment compensation; or

(2) disability insurance benefits under any state or federal law.

Sec. 83.004. AMOUNT OF PAY DURING LEAVE. (a) An employee who is eligible for leave under this chapter is entitled to an amount paid by the employer equal to the salary the employee would have been paid if the employee had worked during that pay period.

(b) If the employee takes less than a full pay period of leave under this chapter, the employer shall prorate the amount of pay for each day of leave the employee takes.

Sec. 83.005. FORESEEABILITY OF LEAVE; NOTICE TO EMPLOYER. (a) An employee who intends to take leave under this chapter shall, before the 30th day preceding the date the leave is to begin, notify the employer in writing of the employee's intention to take the leave. If the date of the birth or placement of the child requires that the leave begin in less than 30 days, the employee shall provide notice to the employer as is practicable.

(b) An employee may take leave under this chapter intermittently if the employee notifies the employer in writing.

(c) If an employee gives notice of intermittent leave under Subsection (b), the employer may require the employee to transfer temporarily to an available alternative position offered by the employer for which the employee is qualified and that:

(1) has equivalent pay and benefits; and

(2) better accommodates recurring periods of leave than the regular employment position of the employee.

(d) On notice by an employee under Subsection (a), an employee may take leave under this chapter on a reduced leave schedule. Work performed by an employee on a reduced leave schedule does not reduce the total amount of leave to which the employee is entitled.

Sec. 83.006. SUBSTITUTION OF OTHER PAID LEAVE PROHIBITED. An employer may not require an employee to substitute accrued paid vacation leave, personal leave, medical or sick leave, or other leave for leave provided under this chapter.

Sec. 83.007. LEAVE NOT CONCURRENT WITH FEDERAL FAMILY LEAVE ACT. An employee who is entitled to leave under the federal Family and Medical Leave Act of 1993 (29 U.S.C. Section 2601 et seq.) is entitled to take leave under that law in addition to any leave taken under this chapter.

Sec. 83.008. NOTICE BY EMPLOYER REQUIRED; CIVIL PENALTY. (a) Each employer shall post in conspicuous places on the premises of the employer where notices to employees and applicants for employment are customarily posted a notice, prepared or approved by the commission, setting forth the pertinent provisions of this chapter and information relating to the enforcement of this chapter.

(b) An employer who wilfully violates this section is liable for a civil penalty not to exceed $100 for each violation. The attorney general may bring an action to collect a civil penalty under this section. Civil penalties assessed under this section shall be deposited in the general revenue fund.

Sec. 83.009. EMPLOYMENT AND BENEFITS PROTECTION; EXCEPTION. (a) An employee who takes leave under this chapter is entitled, on return from the leave, to reinstatement in the former position of employment or an equivalent position of employment with equivalent employment benefits, pay, and other terms and conditions of employment.

(b) Leave taken under this chapter may not result in the loss of any employment benefit accrued before the date on which the leave began.

(c) This section does not entitle an employee who is reinstated in employment to:

(1) the accrual of seniority or other employment benefits during any period of leave; or

(2) any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave.

(d) This section does not prohibit an employer from requiring an employee on leave under this chapter to report periodically to the employer on the status and intention of the employee to return to work.

Sec. 83.010. COMMISSION POWERS AND DUTIES. The commission

shall adopt rules as necessary to implement this chapter.

Sec. 83.011. PROHIBITED ACTS. (a) An employer may not interfere with, restrain, or deny the exercise of or the attempt to exercise any right provided under this chapter.

(b) An employer may not discharge or otherwise discriminate against an individual for opposing a practice made unlawful by this chapter.

(c) A person may not discharge or otherwise discriminate against an individual because that individual has:

(1) filed a charge, or instituted or caused to be instituted a proceeding, under or related to this chapter;

(2) given, or is about to give, any information in connection with an inquiry or proceeding relating to a right provided under this chapter; or

(3) testified, or is about to testify, in an inquiry or proceeding relating to a right provided under this chapter.

Sec. 83.012. ENFORCEMENT. (a) An employer who violates Section 83.011 is liable to an affected individual for damages equal to the amount of:

(1) any wages, salary, employment benefits, or other compensation denied or lost to the individual by reason of the violation or, if wages, salary, employment benefits, or other compensation has not been denied or lost, any actual monetary losses sustained by the individual as a direct result of the violation, including the cost of providing necessary care, not to exceed an amount equal to the individual's wages or salary for 12 weeks; and

(2) interest on the amount determined under Subdivision (1) computed at the prevailing rate of interest on judgments.

(b) The employer is also liable for equitable relief as appropriate, including employment, reinstatement, and promotion.

(c) An action to recover damages or equitable relief under this section may be maintained by any one or more individuals for and on behalf of those individuals.

(d) In addition to any judgment awarded to the plaintiff, the court may require the defendant to pay reasonable attorney's fees, reasonable expert witness fees, and other costs.

SECTION 5.02. (a) This article applies only to a suspension, termination, or other adverse employment action that is taken by an employer against an employee because of an employee absence authorized under Chapter 83, Labor Code, as added by this article, that occurs on or after March 1, 2018. Action taken by an employer against an employee for an employee absence occurring before March 1, 2018, is governed by the law in effect immediately before the effective date of this Act, and the former law is continued in effect for that purpose.

(b) An employee is not entitled to take leave as provided by Chapter 83, Labor Code, as added by this article, before March 1, 2018.

(c) The Texas Workforce Commission shall adopt rules and prescribe notices as required by Chapter 83, Labor Code, as added by this article, not later than January 1, 2018.

ARTICLE 6. EFFECTIVE DATE

SECTION 6.01. This Act takes effect December 1, 2017.