What Employment Bills Will Texas Legislature Consider in 2021?

The Texas legislature will begin its bi-annual session on January 12, 2021, during which it will consider at least 26 employment bills that have the potential of affecting large swaths of employers across the state. While most of these bills will not make it past the committee stage, they are worth looking into because they signal what is important to our legislature and what we may see enacted during the future legislative sessions and/or by some local municipalities or counties.

Some of these bills (or their versions) were introduced in 2019, but failed to pass. I have indicated those bills with an *.

What is NOT on the Menu? 

There have been zero bills addressing non-competition and non-solicitation agreements or trade secrets.  Neither have we seen any bills directly addressing any COVID-related employment issues in any meaningful way that would impact Texas employers.

What is on the Menu? 

Employment Discrimination

SB233* and HB188* – Prohibit employment discrimination by state contractors based on gender identity or expressions or sexual orientation. Gender identity or expression are defined as having or being perceived as having a gender-related identity, appearance, expression, or behavior, regardless of whether that identity, appearance, expression, or behavior is different from that commonly associated with the individual’s actual or perceived sex assigned or designated at birth.

HB698 – Prohibits employment discrimination based on reproductive decisions, including discrimination based on marital status at the time of pregnancy, use of assisted reproduction to become pregnant, the use of contraception or a specific form of contraception, or the obtainment of any other health care drug, device, or service relating to reproductive health.

SB45* and HR48* – Prohibit sexual harassment at work by any employer with at least one employee.   Employer is liable for harassment if employer’s agents or supervisors knew or should have known that the conduct constituting sexual harassment occurred and failed to take immediate and appropriate corrective action.

HB392, SB77 and HB38 – Prohibits discrimination on the basis of hair texture or protective hairstyle associated with race. 

Mandatory Paid Leave

HB284 and HB 87 – Requires employers provide one hour of paid sick leave for each 30 hours worked by an employee up to a maximum of 40 hours per calendar year.

HB247 – Requires employers to provide at least 30 hours of paid leave for certain family or medical obligations for employees that have been employed for at least one year.

HB361 – Gives employers franchise tax credit if they provide a certain amount of paid sick leave to qualified employees.

Inquiries into Wage History

HB419* and HB360* – Prohibit employers from asking employment applicants about their wage history or considering such history in making decision about whether to hire an applicant, how much to pay the applicant, whether to continue to employee the employee, or whether to promote the employee.  However, voluntary disclosure by the applicant of their wage history is not prohibited.

Criminal Background Checks

HB455* – Prohibits employers from including questions regarding an applicant’s criminal history record information on the initial employment application forms but allows such inquires after an employee has qualified for the job conditionally or has been invited for an interview.

Advance Notice of Work Schedules

HB401* – Employers in the food and general retail establishments with at least 500 employees in this state, at least 10 other retail sales establishing in other states, and meeting several other requirements, are required to notify each hourly employee of the employee’s scheduled work shift at least two weeks before the time the shift is scheduled to begin.

Tip Collection

HB344* – Prohibits employers from collecting or receiving any portion of a gratuity paid to of left for a tipped employee.

Non-Disclosure and Arbitration Agreements

SB209* – Makes non-disclosure or confidentiality agreement between an employer and an employee void and unenforceable to the extent it prohibits the employee from notifying, or limits the employees’ ability to notify, a local or state law enforcement agency or any regulatory agency of sexual assault or sexual harassment committed by an employee of the employer o at the employee’s place of employment.  It also voids arbitration agreements requiring mandatory arbitration of disputes involving allegations of sexual assault or sexual harassment.

Minimum Wage

HB615 – Requires minimum wage of $11.25 in 2022 and $15.00 in 2023.

HB383 – Requires minimum wage of at least $12.00.

HB731* and HB60* – Requires minimum wage of $15.00.

HB255 – Requires annual adjustment of the federal minimum wage based on the consumer price index.

Unpaid Wages

HB405* and SB57* – Extends the deadline for employees to file a claim for unpaid wages from 6 months to 1 year.

HB190* – Authorizes Texas to create a database listing all employers penalized for failure to pay wages or convicted of certain criminal offenses involving wage theft and to publish the database on a publicly-accessible website.

Forced Labor

HB820 – Requires businesses with gross receipts over $500 million to conduct audits of their business supply chains and on-site services for the use of forced labor.

Leiza Dolghih is a partner at Lewis Brisbois Bisgaard & Smith LLP in Dallas, Texas and a Co-Chair of the firm’s Trade Secrets and Non-Compete Disputes national practice. Her practice includes commercial, intellectual property and employment litigation. You can contact her directly at Leiza.Dolghih@LewisBrisbois.com or (214) 722-7108.

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