It is something that occurs once every two years. No, this is not a post about elections or the World Test Championship (it is not what it sounds like and is actually pretty awesome). I’m talking about the Texas Legislative Session beginning and the release of their proposed bills. Texas is unique in that the legislature only meets once every two years unless the governor calls a special session.
In this post, we will explore some of the bills that have been introduced so far this legislative session that relate to labor and employment. I plan to update this post once the deadline to introduce new bills ends and probably will do a follow-up post if anything noteworthy passes. I am not going to include any bills related to health insurance or Medicaid, marijuana, or those that are specific to state employees, even though these affect labor and employment law. You can view all of the bills that have been proposed so far here.
This post will focus on those bills that concern the traditional areas that concern labor and employment such as sexual harassment, wage and hour laws, the minimum wage, and discrimination. Due to the number of bills, I am only including a brief summary in addition to that already provided by the legislature with what I consider the highlights of the respective bill.
Relating to the statute of limitations applicable to a sexual harassment complaint filed with the Texas Workforce Commission.
The bill essentially allows a person to file a complaint for sexual harassment with the Texas Workforce Commission within 300 days of the alleged sexual harassment rather than within 180 days. This will allow parties to file more claims.
Relating to the prohibition against sexual harassment in the workplace.
The above house and senate bills essentially define what constitutes sexual harassment within Chapter 21 of the labor code and add liability for a party if they knew or should have known that sexual harassment was occurring and failed to take immediate and appropriate action when they had that knowledge. It tracks the language currently in Section 21.1065, which deals with sexual harassment for unpaid interns, however, the new language applies to all employees.
Relating to discrimination on the basis of hair texture or protective hairstyle associated with race.
At the time of this article, six states have enacted similar laws regarding hairstyle discrimination and 22 states have considered it. These laws ban discrimination based on hairstyles that are typically associated with a certain race (generally these laws list braids, locks, and twists as forms of hairstyles that should be protected). It is possible that bills that have already passed in other states could be expanded or clarified to include other hairstyles that may be traditionally associated with races or ethnic groups.
Relating to requiring certain employers to provide paid sick leave to employees; providing administrative and civil penalties.
The above bill would require employers to provide sick leave for various uses. Employees would be able to earn one hour of paid sick leave for each 30 hours worked.
Relating to the repeal of certain provisions governing state and local enforcement of immigration laws and other provisions related to immigration law.
Relating to state occupational licensing of certain military veterans and military spouses.
These bills deal with the occupational licensing requirements for educators and make it easier for military veterans and spouses to establish residency to obtain a license. The military itself has sought to help military veterans and spouses, as it can be difficult to get an occupational license quickly. You can read the Department of the Treasury and Department of Defense report on the issue here. The issue affects a lot of military spouses that follow their partner throughout their military career, which oftentimes requires frequent relocation..
Sexual Orientation and Gender Identity Discrimination
Relating to the prohibition of certain discrimination based on sexual orientation or gender identity or expression; providing an administrative penalty.
Relating to the prohibition of certain discrimination based on sexual orientation or gender identity or expression; providing an administrative penalty.
These bills would make discriminating against someone on the basis of their gender identity or sexual orientation unlawful and establishes a penalty and a cause of action against employers that do so. As a reminder, Title VII now protects individuals from discrimination on the basis of their sexual orientation and gender identity provided that Title VII applies to the workplace.
Relating to a prohibition of employment discrimination on the basis of reproductive decisions and certain employment agreements limiting reproductive decisions.
This bill prevents the employers from discriminating against employees on the basis of marital status during pregnancy, the use of IVF or other assisted reproduction, the use of contraception or a specific form of contraception, or the “obtainment or use of any other health care drug, device, or service relating to reproductive health.”
Relating to workplace violence prevention in certain health care facilities.
The above bill is meant to help curtail workplace violence at health care facilities by requiring these facilities to create a workplace violence prevention committee or authorize an existing facility committee to develop and implement a workplace violence prevention plan.
Relating to a prohibition on certain discrimination in employment compensation.
This bill bans companies from asking about wage history to prospective hires and makes it illegal to pay an employee less than an employee of the opposite sex for the same or substantially similar work unless it is based on a seniority system, merit system (meaning a system that measures earnings by production) or a bona fide factor other than sex.
Relating to the prohibition of certain employment discrimination regarding an employee who is a volunteer emergency responder.
The bill provides certain protections to volunteer emergency responders that are absent from or late to work because they were responding to an emergency in their capacity as a volunteer emergency responder.
Relating to employment leave for certain family or medical obligations.
The above bill requires employers to provide at least 30 days of leave to employees that have worked for at least one year for a variety of potential uses. These may include the birth of their child, their own illness, and other permitted reasons that are similar under the FMLA.
Relating to the period during which an employee may file a claim for unpaid wages with the Texas Workforce Commission.
The bill basically grants employees one year, rather than 180 days, to file a wage claim. Claims would need to be filed by the first anniversary of when the wages claimed were due.
Relating to the period during which an employee may file a claim for unpaid wages with the Texas Workforce Commission.
The bill basically grants employees one year, rather than 180 days, to file a wage claim. Claims would need to be filed by the first anniversary of when the wages claimed were due.
Relating to certain unlawful employment practices regarding compensation.
This bill essentially prohibits employers from using an employee’s wage history to determine whether to hire an applicant, the wages to pay an employee, whether to employ the person, and whether to promote the employee.
Relating to the timely processing of certain requests relating to the employment of a person released on parole or to mandatory supervision.
Both of these bills are meant to help parolees and released individuals get jobs. These probably stand a good chance of passing. The plight of inmates and parolees who have difficulty getting jobs after they are released got a lot of publicity this year after the inmate firefighters in California served so well in fighting the fires there. Context: A bill passed this year that allowed these prisoners to get firefighting jobs after release.
Relating to the state contribution to the Teacher Retirement System of Texas.
This bill requires the government to contribute a minimum of seven percent to a maximum of ten percent rather than a minimum six percent to the retirement system for teachers.
Relating to a cost-of-living adjustment applicable to certain benefits paid by the Teacher Retirement System of Texas.
The bill states that the government will make a one-time cost of living adjustment payment to someone receiving a monthly death or retirement benefit within the Teacher Retirement System.
Relating to the payment of certain employer contributions for employed retirees of the Teacher Retirement System of Texas.
This bill prevents school districts from passing on the costs of certain payments to retirees through a fee or other method.
And Lastly, The Most “Texas” Bill this Legislative Session
In what is undoubtedly making me question everything that I know as a Texas transplant, Texas has yet to make the Bowie knife the official state knife of Texas.
Most of these bills will not pass. The 87th legislative session is likely to focus on the issues related to COVID. Right now there are hundreds of bills between the House and the Senate (not counting resolutions). Some of these bills may be more likely to pass in future legislative sessions (e.g. those related to marijuana, gender identity, and sexual orientation discrimination), but time will tell what happens.
The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.
The information provided is my own and does not reflect the opinion of my firm or anyone else.
Immigrants are an important part of the workforce. “In 2017, there were 27.4 million foreign-born persons in the US labor force,” which is 17.1% of the total workforce. In the recent midterm election, according to the exit polls, immigration was the 2nd most important issue in the country with 23% of respondents believing that it was the most important issue in the country. This should come as no surprise given the number of different immigration issues that have happened during the Trump administration.
DACA (the Deferred Action for Childhood Arrivals) protects certain people that were brought to the US as children from deportation and allows them to get a job or attend school. They cannot obtain permanent residency through the program but may obtain work authorization and continue to reside in the country. There are currently nearly 700,000 people that are in the DACA program. The program was slated to end before a judge ruled that the government must reinstate the program and accept applications again in August. Earlier today the Ninth Circuit ruled that the Trump Administration cannot end the DACA program immediately. They found that California and the others challenging the Trump administration’s decision to end the program would succeed in their case against the administration.
The sister program of DACA, DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents program) was ended by the Supreme Court in 2016 in a 4-4 decision. It would have allowed the parents of certain US citizens and permanent residents to continue to work and continue to live in the US. Unlike DACA, it was never put into effect. DACA’s fate at the Supreme Court will be determined by the 2 most recent Supreme Court Justices: Neil Gorsuch and Brett Kavanaugh.
It is unclear what will happen with DACA. Trump has expressed support for continuing the program but wants Congress to act. With the new Democratic Congress this may be something that both parties are willing to work on. If they cannot agree, then eventually Supreme Court will likely review the issue and over 700,000 people will be affected by the decision.
Trump and Immigration Visas
The TN visa was saved in the trade agreement between the US, Mexico, and Canada even though Trump and high-ranking senators opposed the visa. The visa allows certain professionals from Canada and Mexico to work in the US. The fact that the visa was not changed is a surprise because the current administration has been aggressive in attempting to reduce the number of visas through its Buy American and Hire American executive order.
This executive order calls for changing the H-1B visa, which is given to workers in specialty occupations that require theoretical or technical expertise. Most workers on this visa are in the tech industry or work with technology. Reforming the H-1B program has support on both sides of the aisle with Democratic Senator Dick Durbin, Sherrod Brown, and other Democrats supporting a change to the program. Some form of comprehensive immigration reform between the Democratically controlled House, the Republican Senate, and President Trump may address both the H-1B visa and the DACA program. It is an area where there seems to be some agreement on both sides of the political spectrum and the issue is important enough to be addressed.
Conclusion
Immigration issues are constantly changing in this administration and will continue to evolve. Both Democrats and Republicans have called for reforming certain visas and continuing the DACA program. The administration, the new Democratically controlled House, and the Republican Senate will eventually need to resolve DACA and may enact a comprehensive immigration reform that fixes DACA, certain visas, and perhaps the permanent residency process. DACA and other immigration problems are quickly coming to a head and require Congress to act to set some clear parameters around the issues. Surprisingly, there does seem to be some agreement between the Democrats and Republicans on the issue. The only question is whether they can work together to find a solution.
The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.
The information provided is my own and does not reflect the opinion of my firm or anyone else.
Immigration and Customs Enforcement (ICE) has increased the number of I-9 audits that it has conducted to around four times as many I-9 inspections (Notices of Inspection) in the first seven months of 2018 as it did in the prior fiscal year. ICE conducted 5,278 Notices of Inspection since January 2018. The reason that the government has increased the number of inspections is clear. They fit with Trump’s agenda to strictly enforce immigration laws.
Unfortunately, many businesses do not regularly audit their I-9’s and those that do often make errors that cannot be corrected. In today’s climate, no business can afford to be unprepared for an I-9 inspection. Luckily, there are a few simple steps that employers can take to help prepare for these unanticipated inspections which frequently occur because an employee or someone else tipped off ICE.
When to Review I-9’s
Before an I-9 audit occurs, you have the opportunity to review and correct your I-9’s. ICE considers self I-9 audits that occur before a Notice of Inspection more favorably than an audit that occurs after ICE has already served a Notice of Inspection. However, if ICE has already served a Notice of Inspection, then it is often a good idea to make changes. Fines from a Notice of Inspection can be substantial.
Can You Prevent a Problem?
Employers make a number of simple, but critical mistakes when filling out I-9’s. One of the biggest failings of companies is a lack of training. It should go without saying that whoever is filling out the I-9 needs to know how to complete the I-9 to do a good job. Some simple training can help these employees and minimize costly mistakes.
Here are some of the most common mistakes on the I-9:
Forgetting to re-verify the work authorization of employees with an Employment Authorization Document (EAD card).
Reverifying US citizens or permanent residents.
Not completing the I-9 in a timely manner. Section 1 must be signed by the first day that the employee begins work. Section 2 must be completed by the employer no later than 3 business days after the employee begins work. If the employee began work on a Monday, then Section 2 must be completed by that Thursday.
Leaving entire sections blank. Re-check the document while the employee is still there or after you complete it. Take a pencil or pen and touch each box to make sure that something is in each box where information is required (in Section 1 “N/A” should appear in any box that does not apply to the employee).
Keeping I-9’s that could be destroyed. I-9’s are kept for 3 years past the date of hire or 1 year after the end of employment, whichever is later. Always keep I-9’s for current employees.
What’s the Worst that Can Happen?
What if the audit reveals that half of your workforce is not authorized to work? What would you do? Would you be able to continue operating or would you have to shut down? How much would it cost to replace half of your workforce? Could you even operate without half of your workers? This is exactly what happened to St. Agnes Bakery when it was determined that half of its workers were not authorized to work after an inspection in January.The facility remains closed more than 6 months later.
Employers will also be fined for violations. The inspector’s job is to see if you are not following the proper I-9 procedure and to fine you or take other corrective action against you.
Prevention is key. Make sure that you regularly audit your I-9’s and correct any errors. An audit can save you a lot of time and prevent potential problems. While I-9’s may seem like just another paper that employees need to fill out when they begin working, there are serious consequences when employers fail to follow the law.
The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.
The information provided is my own and does not reflect the opinion of my firm or anyone else
Brett Holubeck (of Houston, Texas) is the attorney responsible for this site.
