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.