88R10271 SCP-F     By: Bryant H.B. No. 4394       A BILL TO BE ENTITLED   AN ACT   relating to increasing warehouse worker protections.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Title 2, Labor Code, is amended by adding   Subtitle F to read as follows:   SUBTITLE F. WORKER PROTECTIONS   CHAPTER 96. WAREHOUSE WORKER PROTECTIONS   SUBCHAPTER A.  GENERAL PROVISIONS          Sec. 96.001.  DEFINITIONS. In this chapter:                (1)  "Adverse employment action" includes termination,   demotion, unfavorable reassignment, failure to promote,   disciplinary action, reduction in compensation, and constructive   discharge.                (2)  "Aggregated work speed data" means employee work   speed data that an employer has combined or collected together in   summary or other form such that the data cannot be identified with   any individual.                (3)  "Commission" means the Texas Workforce   Commission.                (4)  "Controlled group of corporations" means any group   through which one or more chains of corporations are connected   through stock ownership with a common parent corporation if:                      (A)  stock possessing at least 50 percent of the   total combined voting power of all classes of stock entitled to vote   or at least 50 percent of the total value of shares of all classes of   stock of each of the corporations, except the common parent   corporation, is owned by one or more of the other corporations; and                      (B)  the common parent corporation owns stock   possessing at least 50 percent of the total combined voting power of   all classes of stock entitled to vote or at least 50 percent of the   total value of shares of all classes of stock of at least one of the   other corporations, excluding, in computing such voting power or   value, stock owned directly by such other corporations.                (5)  "Defined time period" means any time interval   equal to or less than the duration of an employee's shift.                (6)  "Employee" means an individual who is employed by   an employer for compensation. The term does not include an   independent contractor.                (7)  "Employee work speed data" means information an   employer collects, stores, analyzes, or interprets relating to an   employee's performance of a quota, including quantities of tasks   performed, quantities of items or materials handled or produced,   rates or speeds of tasks performed, measurements or metrics of   employee performance in relation to a quota, and time categorized   as performing tasks or not performing tasks.                (8)  "Employer":                      (A)  means a person who directly or indirectly, or   through an agent or any other person, including through the   services of a third-party employer, temporary services, or staffing   agency, independent contractor, or any similar entity, at any time   during the preceding 12 months, employs or exercises control over   the wages, hours, or working conditions of:                            (i)  100 or more workers, including workers   employed by a member of a controlled group of corporations of which   the person is a member, at a single warehouse distribution center;   or                            (ii)  500 or more workers, including workers   employed by a member of a controlled group of corporations of which   the person is a member, at one or more warehouse distribution   centers in this state; and                      (B)  includes any agent or other person, and any   member of, a controlled group of corporations of which a person   described by Paragraph (A) is a member.                (9)  "Quota" means a work standard by which:                      (A)  an employee is assigned or required to   perform at a specified productivity speed or complete a quantified   number of tasks within a defined time period; or                      (B)  an employee's actions are categorized   between time performing tasks and not performing tasks and a   performance standard or recommendation is applied to the employee's   actions.                (10)  "Warehouse distribution center" means an entity   described by any of the following North American Industry   Classification System (NAICS) codes as they exist on September 1,   2023:                      (A)  493 for warehousing and storage;                      (B)  423 for merchant wholesalers, durable goods;                      (C)  424 for merchant wholesalers, nondurable   goods;                      (D)  454110 for electronic shopping and   mail-order houses; or                      (E)  492110 for couriers and express delivery   services.          Sec. 96.002.  APPLICABILITY TO EMPLOYEES. This chapter   applies only to an employee who:                (1)  works at a warehouse distribution center in a   non-administrative position; and                (2)  is subject to a quota described by Section 96.051.          Sec. 96.003.  RULES. The commission shall adopt rules as   necessary for the administration of this chapter.   SUBCHAPTER B.  EMPLOYER REQUIREMENTS          Sec. 96.051.  QUOTAS. (a)  An employer shall provide to a   new employee, not later than the 30th day after the date the   employee is hired, a written description of:                (1)  each quota to which the employee is subject,   including the number of tasks to be performed or materials to be   produced or handled within the defined time period; and                (2)  any potential adverse employment action that could   result from failure to meet a quota described by Subdivision (1).          (b)  For each change to a quota that occurs after the date an   employee was hired, the employer shall provide an updated written   description of each changed quota to which the employee is subject   not later than the second business day before the date the changed   quota takes effect.          (c)  An employer shall provide an employee with notice of the   applicable quota for the employee before an employer takes an   adverse employment action against an employee in relation to the   employee's performance of a quota.          (d)  An employee may not be required to meet a quota that   prevents compliance with meal or rest periods or use of bathroom   facilities required by law, including reasonable travel time to and   from bathroom facilities.          (e)  An employer may not take adverse employment action   against an employee for failure to meet a quota that:                (1)  does not allow an employee to comply with meal and   rest periods; or                (2)  has not been disclosed to the employee under this   section.          (f)  Paid and unpaid breaks may not be considered productive   time for the purpose of any quota or monitoring system unless the   employee is required to remain on call during the paid or unpaid   break.          Sec. 96.052.  POSTING OF WORKPLACE NOTICE. An employer   shall post a public notice in the workplace informing employees of   their rights under this chapter, including:                (1)  the amount of work in a prescribed time that   constitutes a permissible quota; and                (2)  the right of an employee to:                      (A)  request quota and speed data information; and                      (B)  make a complaint to an applicable state   authority regarding a violation of an employee's rights under this   chapter.          Sec. 96.053.  RECORDKEEPING. (a) An employer that uses   quotas or monitors work speed data shall maintain records of:                (1)  the individual work speed data of each employee;                (2)  the aggregated work speed data for similar   employees at the same establishment; and                (3)  a written description of the quotas each employee   was provided under Section 96.051.          (b)  The records described under Subsection (a) must be   maintained for the duration of the employee's employment.          (c)  On an employee's separation from employment, the   employer shall retain the employer's records regarding the employee   for the six-month period preceding the date of the employee's   separation. The employer must retain the records for not less than   three years after the date of the employee's separation.          (d)  An employer is not required to maintain records under   this section if the employer does not use quotas or monitor work   speed data.          Sec. 96.054.  ACCESS TO RECORDS. (a) On request by the   commission, an employer shall provide a copy of the records   described by Section 96.053(a) to the commission.          (b)  On request, a current employee of an employer is   entitled to receive from the employer:                (1)  a written description of each quota to which the   employee is subject;                (2)  a copy of the employee's work speed data; and                (3)  a copy of the preceding six months of aggregated   work speed data for similar employees at the same workplace.          (c)  Not later than the third anniversary of the date of an   employee's separation from employment with an employer, the former   employee is entitled to receive, on request:                (1)  a written description of each quota to which the   employee was subject as of the date of the employee's separation;                (2)  a copy of the employee's work speed data for the   six-month period preceding the date of the employee's separation   from employment; and                (3)  a copy of aggregated work speed data for similar   employees at the same establishment for the six-month period   preceding the date of the employee's separation from employment.          (d)  A record requested under this section must be provided   at no cost to the requestor.          (e)  An employer shall provide access to a record requested   under this section not later than:                (1)  for a written description of each quota to which an   employee was subject, the second business day after the date the   employer receives the request; and                (2)  for all other records requested under this   section, the seventh business day after the date the employer   receives the request.          (f)  This section does not require an employer to use quotas   or monitor work speed data. An employer that does not use quotas or   monitor work speed data is not required to maintain or provide the   records as described by this section.   SUBCHAPTER C.  UNLAWFUL RETALIATION          Sec. 96.101.  UNLAWFUL RETALIATION. (a) An employer may not   retaliate or otherwise take any adverse employment action against   an employee for exercising any right conferred by this chapter, or   for being perceived as exercising any right conferred by this   chapter, including for:                (1)  making a request for information about a quota or   personal work speed data under Section 96.054; or                (2)  making a complaint related to a quota or alleging a   violation of this chapter to the employer, the commission, or a   local, state, or federal governmental agency or official.          (b)  For each adverse employment action taken against an   employee before the 90th day after the date the employee engages or   attempts to engage in an activity protected under this chapter,   there is a rebuttable presumption that the adverse employment   action violates this chapter. The presumption may be rebutted by   clear and convincing evidence that:                (1)  the adverse employment action was taken for other   permissible reasons; and                (2)  the engaging or attempting to engage in an   activity protected by this chapter was not a motivating factor in   the adverse employment action.   SUBCHAPTER D.  ENFORCEMENT          Sec. 96.151.  WORKPLACE INSPECTION BY COMMISSION; REFERRAL   TO ATTORNEY GENERAL.  (a)  The commission shall investigate an   employer for a violation of this chapter if the employer's worksite   is found to have an annual employee injury rate of at least one and   one-half times the warehousing industry's average annual injury or   fatality rate as published by the Bureau of Labor Statistics' most   recent Occupational Injuries and Illnesses and Fatal Injuries   database.          (b)  Following an inspection under Subsection (a), the   commission may refer the matter to the attorney general for   enforcement if the commission has reason to believe that the   employer has violated this chapter.          Sec. 96.152.  ATTORNEY GENERAL ACTION. The attorney general   may bring a civil action against an employer for a violation of this   chapter.          Sec. 96.153.  PRIVATE RIGHT OF ACTION. (a) A current or   former employee or a representative of a current or former employee   may bring an action for injunctive relief to obtain compliance with   this chapter and may, on prevailing in the action, recover costs and   reasonable attorney's fees in the action.          (b)  In an action involving a quota imposed by an employer   that prevented compliance with any applicable law or regulation   relating to workplace safety, employee health, or meal or rest   break requirements, injunctive relief shall be limited to:                (1)  suspension of the quota; and                (2)  compensatory damages in the form of restitution to   address any retaliation or other adverse employment action taken by   the employer in relation to the complaint or its enforcement.          (c)  In an action involving retaliation in violation of this   chapter, a prevailing current or former employee or a   representative of a current or former employee may be awarded   exemplary damages equal to the greater of $10,000 or three times the   amount of any compensatory damages, including for unpaid wages and   employment benefits. Damages awarded under this subsection are in   addition to injunctive relief.          SECTION 2.  As soon as practicable after the effective date   of this Act, the Texas Workforce Commission shall adopt rules   necessary to implement Subtitle F, Title 2, Labor Code, as added by   this Act.          SECTION 3.  The change in law made by this Act applies only   to a cause of action that accrues on or after the effective date of   this Act.          SECTION 4.  This Act takes effect September 1, 2023.