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

Governor Perry signed SB 1024 eliminating a loophole that previously existed for a criminal theft of service charge.  Under prior law, a party obtaining services from another under a promise to pay could avoid a criminal charge of theft of service so long as the party was making minimal payments.  According to the bill's analysis:

Theft of wages occurs when employers fail to pay workers their promised wages. This is a frequent occurrence in Texas. In certain industries, such as construction, one in every five workers experiences wage theft. In addition, 50 percent of day laborers have experienced wage theft. The impact of this theft is widespread and has caused many workers to be unable to meet their family's basic needs. 

S.B. 1024 addresses instances when workers receive periodic or partial payment of wages. The bill also amends current law to maintain that a person commits theft of service if, with intent to avoid payment, that person fails to make full payment after receiving notice demanding payment if the compensation was to be paid periodically. The intent to avoid payment for a service may be formed at any time during or before a pay period, and the partial payment of wages alone is not sufficient evidence to negate the actor's intent to avoid payment for a service.

SB 1024 creates a criminal offense when the actor fails to make "full" payment after rendition of the services and further clarifies "that partial payment of wages alone is not sufficient evidence to negate the actor's intent to avoid payment for service."

The law takes effect September 1, 2011.

Follow me on Twitter @RussellCawyer.

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Its getting near the end of the time to sponsor bills for consideration during this Texas legislative session.  Here are the most recently enrolled bills potentially effecting Texas employers.

HB 2609 (Guillen) (relating to employment at or by certain facilities serving the elderly or persons with disabilities)

HB 2695 (Davis) (relating to acquiring Human Health and Services Agencies to give preference to certain persons and making hiring decisions)

HB 2681 (Hartnett) (relating to the protection of trade secrets)

HB 2720 (Pitts) (relating to unpaid furloughs for state employees)

HB 2755 (Fischer) (relating to unemployment compensation, eligibility and charge backs regarding certain persons through victims or whose immediate family members or victims of sexual assault and family violence)

SB 1305 (Rodriguez) (relating to a prohibition of school districts’ retaliation against an employee for filing a grievance)

HB 2579 (Davis) (relating to relief for certain employers from penalties and sanctions under the Texas Unemployment Compensation Act)

HB 2549 (Crownover) (relating to the authority of a state employee to authorize a deduction from the employees salary or wage payment for a charitable contribution to certain agencies)

HB 2463 (Reynolds) (relating to access to service records regarding unemployment discrimination claim)

HB 2454 (Zedler) (relating to prohibiting discrimination by public institutions of higher education against faculty members and students based on the conduct of research relating to intelligent design)

HB 2450 (Jackson) (relating to the creation of an offense of employing an individual not lawfully present in the US)

SB 1268 (Whitmire) (relating to right of sheriff’s departments of certain counties to maintain local control over wages, hours and other terms of conditions of employment)

SB 1254 (Carona) (relating to the creation of the offense of employing an individual not lawfully present in the US)

HB 2227 (Coleman) (relating to an offense committed against a person because of bias or prejudice on the basis of gender identity or expression)

HB 2219 (Davis, Y) (relating to a prohibition placed on an open enrollment charter school against the employment of a person determined under certain circumstances to have engaged in misconduct that presents a risk to the health, safety and/or welfare of the student or minor)

HB 2306 (Alvarado) (relating to certain health and safety matters regarding appropriate places of employment in places that are accessible to the public)

SB 1216 (Estes) (relating to the determination of the validity and enforceability of a contract obtaining an arbitration agreement)

HB 2380 (Shelton) (relating to employment by school districts of certain persons under probationary contracts)

HB 2405 (Chisum) (relating to discrimination and restraint of trade against certain persons regulated under the Occupations Code)

SB 1001 (Carona) (relating to discrimination and restraint of trade against certain persons regulated under the Occupations Code)

SB 1042 (Haggar) (relating to the eligibility of an employees convicted of certain offenses that provide services under a contract with the public school)

HB 1888 (Miller, S) (relating to requiring employers to participate in the Federal Electronic Verification Work Authorization Program)

SB 1006 (Lucio, Ellis) (relating to unemployment compensation modernization)

HB 1827 (McClendon) (relating to the ability of a non-exempt employee to participate in certain academic extracurricular developmental activities of the employee’s child)

HB 1747 (Veasey) (relating to retaliation as unlawful employment practice)

HB 1700 (Coleman) (relating to employment of physicians by certain hospitals)

HB 1659 (Davis, Y) (relating to conditions of employee for certain sheriff departments)

HB 1565 (Coleman) (relating to the unemployment of physicians by hospital districts)

HB 1513 (Dutton) (relating to hearings on certain public school employees employment decisions before the Board of Trustees of the school district)

HB 1506 (Christian) (relating to unemployment compensation eligibility and charge backs regarding certain persons who are victims who whose immediate family members are victims of sexual assault)

HB 1447 (Dukes) (relating to the right of certain municipalities to maintain local control over wages, hours and terms and conditions of employment)

SB  761 (West) (relating to employment of physicians by certain hospitals associated with non-profit fraternal organizations)

HB 1490 (Naishtat) (relating to the accumulation of payment of sick leave for employees in certain sheriff departments)

HB 1488 (Gudeaires) (relating to examinations for hiring certain municipal fire departments)

HB 1166 (Zerwas) (relating to tobacco sensation program for certain public employees and their dependants and to assessment to a fee for certain public employees who use tobacco)

SB 314 (Zaffiri) (relating to unemployment compensation and eligibility and charge back regarding certain persons who are victims or whose immediate family members are victims of sexual assault)

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According to the New York Times, Texas will consider whether to adopt a "loser pays" rules for civil cases.  The rule, similar to the English Rule, would  that require the losing party in a civil case to pay the attorney's fees and costs of the prevailing party.  It is unclear whether this rule, if passed, would have any effect on the number of employment discrimination, retaliation or harassment suits filed against Texas employers. 

Employers shouldn't get excited about a loser pays rule; however, because I think the likelihood of that legislation passing this session is remote.  

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The following employment-related bills were enrolled for consideration in the Texas Legislature over the past two weeks.

HB 1178 (Flynn) (Relating to employment protection for members of the state military forces).

HB 1219 (Miles) (Relating to the right of an employee to time off from work if the employee and/or the employee’s child is the victim of family violence or a violent felony offense).

HB 1272 (Miller) (Relating to the requiring of employees to participate in the Federal Electronic Verification of Work Authorization Program or E-Verify; establishing an unlawful employment practice and providing criminal penalties).

HB 1275 (Harless) (Relating to the suspension of certain licenses held by employers for knowing employment of persons not lawfully present in the United States).

HB 1202 (Riddle) (Relating to the creation of the offense of an employing or contracting with an unauthorized alien).

HB 1166 (Zerwas) (Relating to the tobacco sensation program for certain public employees and their dependents and to the assessment of the fee on certain public employees who use tobacco).

SB 545 (Seliger) (Relating to employment records for law enforcement officers, including procedures to correct employment termination reports; providing an administrative penalty).

HB 1057 (Anchia) (Relating to business leave time for certain municipal fire fighters and police officers).

SB 439 (Van de Putte) (Relating to the exclusion from unemployment compensation charge back for certain employers of uniform service members).

HB 954 (Lozano) (Relating to an employee’s transportation of certain firearms or ammunition while on certain property owned or controlled by employee’s employer).

HB 884 (Howard) (Relating to a limited waiver of sovereign immunity for state and local governmental entities and certain employment lawsuits filed by nurses).

HB 878 (Howard) (Relating to the participation of governmental entities and other employers in a Federal Work Authorization Verification Program; establishing an unlawful employment practice).

HB 681 (Kleinschmidt) (Relating to an employee’s transportation of certain firearms or ammunition while on certain property owned or controlled by the employee’s employer).

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The blog has been updated with bills enrolled in the Texas Legislature the week of January 11, 2011 likely to effect Texas employers.  This week's bills include bills targeted at prohibiting workplace smoking; prohibitions against sexual orientation discrimination; payment of wages through payroll card accounts and a bill to require employers to use the federal E-verify system.  You can access all the newly enrolled bills here.

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Senate Bill 314 was enrolled in the Texas Legislature and would exclude, from an employer's unemployment tax account (i.e., no chargeback), unemployment benefits paid to an employee who left employment because he or she (or their immediate family member) is a victim of sexual assault.  Bill text here.

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On March 20, 2009 I posted an entry about several leave of absence bills pending in the Texas Legislature.  Today I want to highlight a few other bills that will effect Texas employers if passed.

• HB 32  Prohibiting discrimination against employees of workers' compensation nonsubscribers who sustain an injury in the course and scope of their employment.
• HB 183  A bill to link the Texas minimum wage to the federal minimum wage.
• HB 226 Prohibits an employer from discriminating against an employee that has refused to participate in an employer's charitable deduction campaign.  
• HB 978  To amend, and greatly expand, prohibited disability discrimination under the Texas Commission on Human Rights Act.
• SB 730 prohibits an employer from implementing policies prohibiting employees from keeping legal firearms and ammunition in locked vehicles on the employer's parking lot.
• SB 986 To extend the statute of limitations for discrimination claims alleging discrimination in the payment of compensation.  State law equivalent of the Lilly Ledbetter Fair Pay Act.

There are also a number of immigration bills pending this session.  Michael Fox has detailed those bills on his blog.

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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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