Texas Employment Law Update : Texas Employment Lawyer & Attorney : Russell D. Cawyer : Kelly Hart & Hallman Law Firm : Dallas TX Labor Updates

President Obama signed the 2010 National Defense Authorization Act setting the budget for the Department of Defense for fiscal year 2010.  The NDAA amends the Family & Medical Leave Act and is effective immediately.  In relevant part, the NDAA amends the FMLA to extend its military leave entitlements.  The FMLA is amended, in relevant part, as follows:

• Expands the exigency leave provisions (which had been limited to family members of reservists) to make clear that employees make take up to twelve (12) weeks of unpaid leave for qualifying exigencies to family members of any member of the armed services on active duty.
• Provides up to twenty-six (26) weeks of unpaid caregiver leave to care for any veteran family member (i.e., child, spouse, parent or next of kin) who is undergoing medical treatment, recuperation or therapy for a serious illness or injury that was sustained or aggravated in the line of duty  and was a member of the Armed Services during the five (5) period preceding the date on which the veteran undergoes the treatment, recuperation or therapy.   

Employers should amend the FMLA policies in their handbooks and procedures to incorporate these changes and train those responsible for administrating leaves of absences on these important changes.

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As we approach local elections, it is good to remember that Texas law may require an employer to provide an employee with paid time off to vote.  The Texas Election Code makes it a Class C misdemeanor for an employer to refuse to allow an employee to be absent from work on election day for purpose of attending the polls to vote.

An employer is not, however, required to allow time off to vote if the polls are open on election day for voting for two consecutive hours outside of the employee's working hours.  For example, if you have an employee that regularly works 8:30 a.m. to 5:30 p.m. with a one-hour lunch break, an employer may have to give that employee time off from work on election day to attend to the polls and vote. In Texas, the election polls are generally open from 7:00 a.m. until 7:00 p.m. 

Because the term "penalty" means a loss or reduction in wages, an employer should provide paid time off for the employee to attend the polls to vote if the polls are not open on election day for at least two consecutive hours outside the employee's working hours.

An employer can avoid this interruption and the payment for otherwise nonworking time by rescheduling work schedules on election day so that employees have two consecutive hours off while the polls are open (e.g., reschedule the employee to work 8:00 a.m. to 5:00 p.m. on election day). 

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I recently wrote about several leave of absence bills pending in the Texas Legislature. On March 25, Congressional Democrats introduced a bill to provide twelve weeks of paid federal family & medical leave --the Family Leave Insurance Act of 2009 (HR 1723).

Unlike the FMLA which only applies to employers with 50 or more employees within a 75 mile radius, the Family Leave Insurance Act of 2009 would apply to employers with 2 or more employees. Employees eligible for the new benefit include employees who earned wages (i.e., paid into the fund) with a covered employer for a minimum of 6 months prior to seeking benefits; and has been employed by the employer with respect to whom paid leave is requested for at least 625 hours of service during the previous 6 months.

Benefits are available to eligible employees who take the leave for the same reasons as FMLA (i.e., the birth or placement of a son or daughter; to care for a serious health condition of the employee or the employee’s family member, including a family service member; or due to a qualifying exigency arising from a close family member who is on or been called up to active military duty).

The employee’s benefit amount is dependent on the employee’s annual income and is calculated on a sliding scale.

• Up to $20,000 is paid 100 percent of that employee's daily earnings;
• More than $20,000 but less $30,000 is paid the greater of 75 percent of that employee's daily earnings; or 100 percent of the daily earnings of an employee with an annual income of $20,000;
• More than $30,000 and not more than $60,000 is paid the greater of 55 percent of that employee's daily earnings; or 75 percent of the daily earnings of an employee with an annual income of $30,000;
• More than $60,000 and not more than $97,000, is paid the greater of 40 percent of that employee's daily earnings; or 55 percent of the daily earnings of an employee with an annual income of $60,000; and
• More than $97,000, an amount equal to 40 percent of the daily earnings of an employee with an annual income of $97,000.

The benefits would be paid from a federal trust fund. The trust fund would be funded from both employer and employee contributions. Employers and employees would both contribute .2 percent of each employee’s wages to the fund beginning on January 1, 2011. Small employers (under 20 employees) would pay a .1 percent premium. The law, if passed, would be administered like state unemployment benefit programs.

Finally, the bill provides anti-retaliation provisions; creates a new civil cause of action against employers that violate the anti-retaliation provisions; as well as potential administrative fines and penalties.

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There are several pending bills in the Texas legislature that could effect the leaves of absence private employers must make available to their employees.  Some of these types of leaves have already been passed in more liberal states such as California and Massachusetts.  Pending leave of absence bills in the Texas legislature include:  

• HB 615 Permitting employees with a child enrolled in a special education program and having at least one year tenure with the employer take 10 hours per year of unpaid leave to meet with certain school officials.
• HB 1005 Requiring employers to provide employees employed at least 90 days to take up to 40 hours per year unpaid leave to meet with teachers or attend to certain school events, ceremonies or meetings. The bill also contains anti-retaliation provisions.  (See also SB 649)
• HB 1057 Permitting employees with at least 6 months service to take not less than 2 weeks accrued paid leave for the birth or placement of adoption of a child.  Employees of employers that do not provide paid leave, who have insufficient paid leave or are ineligible for leave are entitled to between 2 and 6 unemployment benefits.  The bill does not mandate the creation of any leave programs but does provide a right to reinstatement for employees that utilize leave under this proposed law.  (See also SB 692)
• SB 60   Requires employers to provide for unpaid time off to employees who are the victims of certain violent crimes to attend court proceedings.  The bill also provides a civil cause of action, damages and anti-retaliation provisions for violations.

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