87R1085 JSC-D     By: Sherman, Sr. H.B. No. 360       A BILL TO BE ENTITLED   AN ACT   relating to a prohibition on certain discrimination in employment   compensation.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  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 and is enforceable under this   chapter.          SECTION 2.  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:                      (A)  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; and                      (B)  is not currently employed by that employer in   any capacity.                (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.                (5)  "Wage history information" means information on an   applicant or employee's previous wages.          Sec. 24.002.  EMPLOYER INQUIRY INTO AND CONSIDERATION OF   WAGE HISTORY INFORMATION. (a) An employer commits an unlawful   employment practice if the employer:                (1)  includes a question regarding an applicant's wage   history information on an employment application form;                (2)  inquires into an applicant's wage history   information;                (3)  considers an applicant's wage history information   in determining:                      (A)  whether to hire the applicant; or                      (B)  the wages to be paid to the applicant; or                (4)  obtains an applicant's wage history information   from a previous employer of the applicant or other source, unless   the wages in that previous employment position are subject to   disclosure under Chapter 552, Government Code.          (b)  Notwithstanding Subsection (a)(3)(B), if an applicant   voluntarily discloses the applicant's wage history information to   an employer, the employer may consider that information in   determining the applicant's wages.          (c)  This section does not prohibit an employer from asking   an applicant regarding the applicant's expectation of wages for the   prospective employment position.          Sec. 24.003.  EMPLOYER PROVISION OF PAY SCALE. On   reasonable request following an initial interview, an employer   shall provide to an applicant a pay scale for the employment   position for which the applicant is applying.          Sec. 24.004.  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 a wage differential effectively fulfills the   business purpose the factor is intended to serve.          (b)  An employer commits an unlawful employment practice 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)  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.          (d)  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.          (e)  An employer may not justify a wage differential based on   wage history.          (f)  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.          Sec. 24.005.  OTHER PROHIBITED ACTS. (a) An employer   commits an unlawful employment practice 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, applicant, or other person because the person:                      (A)  inquired about, disclosed, compared, or   otherwise discussed an employee's wages or an applicant's   prospective 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 or an applicant to disclose the applicant's   prospective wages.          (c)  An employer may prohibit a human resources employee   whose job responsibilities require access to the compensation   information of other employees from disclosing that information   without the written consent of the employee who is the subject of   the information. This subsection does not apply to compensation   information that is subject to disclosure under Chapter 552,   Government Code.          Sec. 24.006.  EMPLOYER RECORDS. Each employer shall compile   and maintain for a period of at least three years records that   contain:                (1)  the wages paid to each employee;                (2)  the method, system, computations, and other   factors used to establish, adjust, and determine the wage rates   paid to the employee; and                (3)  any other conditions of employment.          Sec. 24.007.  COMPLAINT; ENFORCEMENT. (a) A person   aggrieved by an unlawful employment practice under this chapter may   file a complaint with the commission or file a civil action in the   manner prescribed by Chapter 21 for violations of that chapter.          (b)  Liability may accrue, and an aggrieved person may obtain   relief as provided by Chapter 21, including recovery of back pay for   the period allowed under Section 21.258, 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.          (c)  The commission shall enforce this chapter in accordance   with Chapter 21.          SECTION 3.  The changes in law made by this Act apply only to   an unlawful employment practice that occurs on or after January 1,   2022.          SECTION 4.  This Act takes effect January 1, 2022.