Bill Text: TX HB404 | 2023-2024 | 88th Legislature | Introduced
Bill Title: Relating to requiring certain employers to provide paid leave to employees; providing civil and administrative penalties.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2023-02-23 - Referred to International Relations & Economic Development [HB404 Detail]
Download: Texas-2023-HB404-Introduced.html
88R3248 KKR-F | ||
By: Collier | H.B. No. 404 |
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relating to requiring certain employers to provide paid leave to | ||
employees; providing civil and 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. DEFINITIONS. In this chapter: | ||
(1) "Commission" means the Texas Workforce | ||
Commission. | ||
(2) "Employee" means a person employed by an employer. | ||
The term does not include a person who is: | ||
(A) an unpaid volunteer; | ||
(B) an independent contractor; or | ||
(C) a participant in a work-study program that | ||
provides employment opportunities for compensation or vocational | ||
training to students attending a secondary or post-secondary | ||
educational institution. | ||
(3) "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. | ||
Sec. 83.002. APPLICABILITY OF CHAPTER. This chapter does | ||
not apply to: | ||
(1) an employee who is: | ||
(A) entitled to unemployment benefits or | ||
allowances under the Railroad Unemployment Insurance Act (45 U.S.C. | ||
Section 351 et seq.); | ||
(B) covered under the Railway Labor Act (45 | ||
U.S.C. Section 151 et seq.); or | ||
(C) employed by the employee's parent, spouse, or | ||
child; or | ||
(2) an employer who is: | ||
(A) a state agency or political subdivision, as | ||
those terms are defined by Section 21.002; | ||
(B) an agency of the federal government; or | ||
(C) a charitable or religious organization | ||
exempt from taxation under Section 501(c), Internal Revenue Code of | ||
1986. | ||
Sec. 83.003. 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 not | ||
more than 75 employees is not required to provide paid leave under | ||
this chapter before the second anniversary of the date the employer | ||
hires the employer's first employee. | ||
Sec. 83.004. 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: | ||
(1) pay the employee for any unused paid leave at the | ||
end of the year at the rate described by Section 83.007; or | ||
(2) make available to the employee at the beginning of | ||
the year the entire amount of paid leave that the employee is | ||
expected to accrue during the year as provided by Section | ||
83.005(d). | ||
(c) Leave hours carried over from a previous calendar year | ||
must be immediately available to the employee in the following | ||
calendar year. | ||
Sec. 83.005. 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. 83.006. 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) accrues at a rate equal to or greater than the rate | ||
described by Section 83.004. | ||
(b) For the purposes of this section, other types of paid | ||
leave include paid vacation, personal days, and paid time off. | ||
Sec. 83.007. 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 may | ||
not be less than the amount required by Section 62.051. | ||
(d) If the employee's normal hourly wage cannot be | ||
determined, the employer shall pay the employee for leave under | ||
this chapter at an hourly wage that may not be less than the amount | ||
required by Section 62.051. | ||
Sec. 83.008. USE OF PAID LEAVE. An employee may use paid | ||
leave accrued under this chapter for any purpose and is not required | ||
to disclose to the employer the reason for taking leave. | ||
Sec. 83.009. 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 under this | ||
chapter but may not require the employee to give notice 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 | ||
employee's intention to use paid leave under this chapter as soon as | ||
practicable. | ||
Sec. 83.010. 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 in both English and | ||
Spanish the information required by this section. | ||
(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. 83.011. 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. 83.012. 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, except that the employee remains | ||
subject to any remaining period of the initial waiting period | ||
described by Section 83.005(a), if applicable. | ||
Sec. 83.013. SUCCESSOR EMPLOYER. If an employer succeeds | ||
or takes the place of an existing employer, each employee of the | ||
former employer who is employed by the successor 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, except that the employee remains | ||
subject to any remaining period of the initial waiting period | ||
described by Section 83.005(a), if applicable. | ||
Sec. 83.014. 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. 83.015. COLLECTIVE BARGAINING AGREEMENT. A collective | ||
bargaining agreement may waive the requirements of this chapter by | ||
clear and unambiguous language within the agreement. | ||
Sec. 83.016. 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. 83.017. 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 83.016 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 83.016 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 for 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. 83.018. 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, 2025. For an employee | ||
hired before January 1, 2025, 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, 2025. | ||
SECTION 3. This Act takes effect January 1, 2025. |