Bill Text: TX HB3483 | 2017-2018 | 85th Legislature | Introduced

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Bill Title: Relating to requiring certain employers to provide paid leave to employees; authorizing administrative penalties.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2017-04-24 - Left pending in committee [HB3483 Detail]

Download: Texas-2017-HB3483-Introduced.html

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By: Collier H.B. No. 3483

A BILL TO BE ENTITLED
AN ACT
relating to requiring certain employers to provide paid leave to
employees; authorizing administrative penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle D, Title 2, Labor Code, is amended by
adding Chapter 83 to read as follows:
CHAPTER 83. EARNED PAID LEAVE
Sec. 83.001. DEFINITION. (a) In this chapter,
"commission" means the Texas Workforce Commission.
(b) In this chapter, "employer" means a person who is
engaged in an industry affecting commerce and who has 50 or more
employees for each working day in each of 20 or more calendar weeks
in the current or preceding calendar year; but does not include the
following:
(1) State of Texas including any State agency as
defined in Chapter 21 of the Texas Labor Code Section 21.002 (14)
(A), (B), and (C);
(2) United State of America including any Federal
agency;
(3) Political subdivision as defined in Chapter 21 of
the Texas Labor Code Section 21.002 (12); and
(4) Any non-profit charitable or religious
organization exempt from taxation under Section 501(c)(3) of the
Internal Revenue Code.
(c) In this chapter, "employee" means an individual
employed by an employer, but does not include the following:
(1) An individual covered under Title 45, U.S.C.
Chapter 11, Sec. 351(d) and (e) of the federal Railroad
Unemployment Insurance Act;
(2) An individual covered under Title 45, U.S.C.
Chapter 8, Subchapter I, Sec. 151(fifth) and Subchapter II, Sec.
181 of the federal Railway Labor Act;
(3) Unpaid volunteers;
(4) Independent contractors;
(5) A participant in a work-study program that
provides students in secondary or post-secondary educational
institutions with employment opportunities for financial or
vocational training; and
(6) Individuals employed by their parent, spouse, or
child.
Sec. 83.002. PAID LEAVE REQUIRED. (a) Each employer shall
provide paid leave annually to each employee in this state under the
terms of this chapter.
(b) Notwithstanding Subsection (a), an employer with at
least 50 but not more than 75 employees is not required to provide
paid leave under this chapter until the second anniversary of the
date the employer hires the employer's first employee.
Sec. 83.003. PAID LEAVE ACCRUAL AND CARRYOVER. (a) Paid
leave under this chapter accrues beginning on the date of hire:
(1) at a rate of one hour of paid leave for each 30
hours worked by an employee; and
(2) up to a maximum of 40 hours per calendar year.
(b) Each employee is entitled to carry over not more than 40
unused accrued hours of paid leave from the current calendar year to
the following calendar year unless the employer elects to pay the
employee for any unused paid leave at the end of the year at the rate
described by Section 83.006.
(c) Leave hours carried over from a previous calendar year
must be immediately available to the employee in the following
calendar year.
Sec. 83.004. ENTITLEMENT TO USE PAID LEAVE; LIMITATIONS.
(a) An employee is entitled to use accrued paid leave under this
chapter 90 calendar days after the date of hire, unless the employer
agrees to an earlier date.
(b) An employee is not entitled to use accrued paid leave
under this chapter if the employee did not work an average of 18 or
more hours a week for the employer in the most recent complete
calendar year.
(c) An employee is not entitled to use more than 40 hours of
accrued paid leave under this chapter in any calendar year.
(d) An employer may make immediately available to an
employee at the beginning of a year, quarter, or other period the
entire amount of paid leave that the employee is expected to accrue
during the year, quarter, or other period.
(e) At the employer's discretion, an employer may loan paid
leave time to an employee in advance of accrual by the employee.
(f) On the mutual consent of the employee and employer, an
employee who chooses to work additional hours or shifts during the
same or following pay period, instead of hours or shifts missed,
does not use accrued paid leave.
(g) Unless an employee policy or collective bargaining
agreement provides for the payment of accrued fringe benefits on
termination, an employee is not entitled to payment of unused
accrued paid leave under this chapter on termination of employment.
Sec. 83.005. EMPLOYER COMPLIANCE. (a) An employer is
considered to be in compliance with this chapter if the employer
offers one or more other types of paid leave that:
(1) may be used for any purpose; and
(2) is accrued at a rate equal to or greater than the
rate described by Section 83.003.
(b) For the purposes of this section, other types of paid
leave include paid vacation, personal days, and paid time off.
Sec. 83.006. PAY RATE FOR LEAVE. (a) Each employer shall
pay each employee for paid leave time taken at a pay rate equal to
the normal hourly wage for that employee.
(b) For any employee whose hourly wage varies depending on
the work performed by the employee, the normal hourly wage is
considered to be the average hourly wage of the employee in the pay
period preceding the pay period in which the employee uses paid
leave.
(c) If an employee receives gratuity in the course of
employment to the extent that the gratuity is considered wages in
the computation of taxes under the Federal Unemployment Tax Act (26
U.S.C. Section 3301 et seq.), the employee's normal hourly wage
shall include the projected average gratuity for an hour of
service.
(d) If an employee is paid in a manner other than on an
hourly basis, the employee's normal hourly wage shall be computed
by calculating the employee's average weekly wage in the manner
provided by Subchapter C, Chapter 408, and dividing that number by
the average number of hours the employee works in a week.
(e) If the employee's normal hourly wage cannot be
determined, the employer shall pay the employee for leave under
this chapter at an average hourly wage for this state, determined by
the commission based on the average weekly wage in covered
employment in this state under Section 207.002(c).
Sec. 83.007. USE OF PAID LEAVE. An employee may use paid
leave accrued under this chapter for any purpose, and is not
required to disclose the reason for taking leave to the employer.
Sec. 83.008. NOTICE TO EMPLOYER. (a) If an employee's need
to use paid leave under this chapter is foreseeable, an employer may
require advance notice of the intention to use paid leave not more
than seven days before the date the leave is to begin.
(b) If an employee's need for paid leave is not foreseeable,
an employer may require the employee to give notice of the intention
to use paid leave under this chapter as soon as practicable.
Sec. 83.009. NOTICE TO EMPLOYEES. (a) Each employer
subject to this chapter shall, at the time of hiring, provide notice
in both English and Spanish to each employee:
(1) of the employee's entitlement to paid leave, the
amount of paid leave provided to employees, and the terms under
which paid leave may be used under this chapter;
(2) that retaliation by the employer against the
employee for requesting or using paid leave to which the employee is
entitled is prohibited; and
(3) that the employee has a right to file a complaint
with the commission or bring a civil action for damages for any
violation of this chapter.
(b) An employer may comply with this section by displaying a
poster in a conspicuous place, accessible to employees, at the
employer's place of business that contains the information required
by this section in both English and Spanish.
(c) The notice under this section must also be provided in a
language other than English or Spanish if that language is the first
language spoken by at least 30 percent of the employer's workforce.
(d) The commission may adopt rules to establish additional
requirements concerning the means by which employers provide notice
required under this section.
Sec. 83.010. BREAK IN SERVICE. (a) Termination of an
employee's employment by an employer, regardless of whether
voluntary or involuntary, is considered a break in service for
purposes of this chapter.
(b) An employee who is subsequently rehired by the employer
following a break in service:
(1) begins to accrue paid leave under this chapter;
and
(2) is not entitled to any unused hours of paid leave
that had accrued before the employee's break in service, unless the
employee is rehired within 30 days of separation or the employer
agrees to reinstate some or all of the employee's previously
accrued paid leave.
Sec. 83.011. TRANSFER OF EMPLOYEE. (a) The transfer of an
employee to a separate division, entity, or location of the same
employer is not considered to be a break in service for purposes of
this chapter.
(b) Following a transfer described by Subsection (a), the
transferred employee is entitled to:
(1) retain all accrued paid leave under this chapter;
and
(2) immediately access the retained paid leave time
without any waiting period.
Sec. 83.012. SUCCESSOR EMPLOYER. If an employer succeeds
or takes the place of an existing employer, employees of the
former
employer who are employed by the successor are entitled to:
(1) retain all accrued paid leave under this chapter;
and
(2) immediately access the retained paid leave time
without any waiting period.
Sec. 83.013. LIMITATIONS OF CHAPTER. This chapter does
not:
(1) prevent an employer from providing more paid leave
than is required under this chapter;
(2) prohibit an employer that provides paid leave in
addition to the paid leave required under this chapter from
restricting the purposes for which an employee may take that
additional leave; or
(3) diminish any rights provided to any employee under
a collective bargaining agreement.
Sec. 83.014. COLLECTIVE BARGAINING AGREEMENTS. A
collective bargaining agreement may waive the requirements of this
chapter by clear and unambiguous language within the agreement.
Sec. 83.015. RETALIATION PROHIBITED. An employer may not
take retaliatory personnel action or otherwise discriminate
against an employee because the employee:
(1) requests or uses paid leave in accordance with
this chapter; or
(2) files a complaint with the commission alleging the
employer's violation of this chapter.
Sec. 83.016. COMPLAINT; HEARING; PENALTY. (a) Any
employee aggrieved by a violation of this chapter may file a claim
with the commission in the manner prescribed by Subchapter D,
Chapter 61.
(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, Chapter 61.
(c) An employer who is found by the commission, by a
preponderance of the evidence, to have violated Section 83.015 is
liable to the commission for an administrative penalty of $500 for
each violation.
(d) An employer who is found by the commission, by a
preponderance of the evidence, to have violated a provision under
this chapter other than Section 83.015 is liable to the commission
for an administrative penalty of not more than $100 for each
violation.
(e) The commission may award the employee all appropriate
relief, including payment for used paid leave, rehiring or
reinstatement to the employee's previous job, payment of back
wages, and reestablishment of employee benefits to which the
employee otherwise would have been eligible if the employee had not
been subject to retaliatory personnel action or other
discrimination.
(f) A party may appeal a final decision of the commission by
filing suit in district court.
Sec. 83.017. CIVIL ACTION BY EMPLOYEE. (a) An employee
aggrieved by a violation of this chapter may bring a civil action to
enforce rights protected by this chapter, including an action for
appropriate injunctive relief, in the district court in the county
in which the alleged violation occurred or in which the alleged
violator's residence or principal place of business is located.
(b) An action under this section must be brought not later
than the third anniversary of the date of the violation.
(c) The employer of an employee who prevails in a civil
action under this section is liable to the affected employee for
damages equal to the amount of any wages, salary, employment
benefits, or other compensation denied or lost to the employee 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 employee as a direct result of the
violation.
(d) An employer described by Subsection (c) is also liable
for equitable relief as appropriate, including reinstatement and
promotion.
(e) In addition to any judgment awarded to an employee, the
court may require the employer to pay reasonable attorney's fees,
reasonable expert witness fees, and other costs.
SECTION 2. (a) The change in law made by this Act applies
to an employee hired on or after January 1, 2019. For an employee
hired before January 1, 2019, paid leave under Chapter 83, Labor
Code, as added by this Act, begins to accrue on that date, and the
employee may begin to use the paid leave 90 calendar days after that
date, unless the employer agrees to an earlier date.
(b) Chapter 83, Labor Code, as added by this Act, does not
preempt or override the terms of any collective bargaining
agreement effective before January 1, 2019.
SECTION 3. This Act takes effect January 1, 2019.