Texas Employment Contracts Legal Questions

An employee normally must abide by the sick leave policy of his employer, unless a city or local ordinance applies.  If the illness or health condition is the result of a workplace injury, the employer cannot terminate an employee for seeking medical attention under the Workers' Compensation Act.  If the medical condition constitutes a disability under the American with Disabilities Act (which is certainly possible with a serious cardiac problem) and the employee has requested a reasonable accommodation with respect to seeking medical care for the disability, the employer cannot terminate the employee for seeking medical care for the disability.If this was just a routine cardiology appointment (and I empathize because I have to see a cardiologist periodically for past incidents which are not disabling to me), the employee normally must use whatever sick leave is available from his employer or must schedule his appointments on his day off.... Read More

Try www.tbls.org.  This is the official website of the Texas Board of Legal Specilaization, an arm of the State Bar of Texas.  There you can find a lawyer near you that is board certified in labor & employment law. You can also try www.lawyers.com, which is the consumer version of a database lawyers use to find other attorneys.  It uses the same database.  ... Read More

Your inquiry raises a number of questions that can only be answered by looking at the contract document.  However, in general, the non-breaching party cannot impose a "penalty" for the other party's breach of a contract.  It can recover its actual damages, but not a penalty.  There are some qualifications to that statement, but they don't appear applicable here. So, it is possible your employer could sue you for damages for its cost of finding a replacement, but that doesn't mean that amount is automatically $10,000.00.  It is probably far far less.  Also, if the employer has itself breached the contract in some other way, you may not have an obligation to honor your promise of giving 45 days' notice.  An hour-long visit to a reputable lawyer should cost you between $250 and $350.  If your working conditions are so bad that staying another 45 days is unacceptable, you should consider spending that amount to see if there is an "out" for you.  Talking to a lawyer who has read the contract is the only way to know with any certainty.  You might also contact the local bar association in your county or an nearby large county.  These associations usually have lawyer referral services that provide low-cost initial consultations.  Good Luck.... Read More

No, and employer cannot change the wage rate retroactively.  An employer is always  free to reduce an at-will employee's hours or wages looking forward.  With notice of such intent, the employee can then decide to work and thus accept the changes or quit.  The same is not true looking backward and the employer must pay the wages at the rate it had engaged the employee to work before the work was performed.... Read More

Was the employer actually taking out the $80.00 each month? If they were, they are likely liable for sending the money to address the loan. If they were not taking out the $80.00, the responsibility may fall on you. If you did not see the deduction, it would probably be your responsibility to send the money in to pay the loan yourself. ... Read More

Your compensation can be based on commissions even if you are an employee, and not an independent contractor.  The question of whether you are an independent contractor or an employee depends upon the degree of control you have over what you do and how you do it, not the basis of your remuneration.  Anyway, potential lenders are not interested in whether you are an employee or independent contractor.  They care about your income, and how steady and reliable it is. ... Read More

You question reveals a number of legal issues.  First, you identify your self as a "contractor" and mention "invoices" then you identify the person you work for as your "enmployer".  Normally those terms are mutually exclusive.  Before you know what your rights are, you have to know whether you are really an indpendent contractor or an employee. In general, if the person you work for tells you the hours to work, supplies your tools and materials, and controls the details of your work and you are paid by the hour or the day or the piece and you are performing work that is part of the essential operations of the company and you have no profit or loss in a project, then you are an employee. Conversely, if you are paid a fixed fee for a project and you supply all labor, equipment and materials, and have the option of sub-contracting the work to someone else as well as working for multiple companys at the same time and there is a possiblity that you could earn a profit or suffer a loss if you don't complete the work on budget, then you are likely a contractor. An employer is required to pay you at least twice per month and cannot change the financial terms of your employment after you have performed the work.  An employer may also have the obligation to pay overtime for hours in excess of 40 in a single workweek.  If an employer has not paid you your wages, then you can file a complaint with the Texas Workforce Commission - Labor Law Department.  However they cannot help you with wages that are over 180 days old.  Be sure to tell them that you believe your employer mis-classified you as an independent contractor and why.  If you are an indepenent contractor, your only enforement mechanism is the courts.  Since the amount owed is less than $10,000.00 you can file a small claims case against the company in a justice of the peace court where the company headquarters is located or where the work was done.  You can do this any time after the payments are past due.  You have up to 4 years, unless you signed an agreement that shortens that time. Good luck.  ... Read More

Do you have a contract, whether individually or through a union, that limits the company's right to fire you?  Sometimes such a contract can be implied from an employee handbook.  If not, you can be fired for any reason not prohibited by statute (e.g. race, gender, etc.) certainly including for not agreeing to new company policies, unless perhaps the policy itself was illegal (e.g. if the policy was that you would not sell to non-white customers, you might have a case that  you couldn't be fired for not agreeing to it).... Read More

This question is hard to answer without looking at your employment agreement, if you had one, and the demand letter from the former employer. In general, an employer can sue a former employee if the employee committed some act which breaches a contract or a common law duty which the employee owed to the employer.  I don't see how they could go after your last year's pay or expense reimbursements.  Presumably you worked for them and provided them services.  They have to pay you for that and can't get your work for free by threatening you with a lawsuit. In any event, there are too many variables to say specifically what your rights or their rights are at this point.  The only way for you to have any real comfort is to go see an attorney.  If you feel you can't afford one, you might check with the Travis County Bar Association to see if they have a lawyer referral service.  Most services will let you talk to a lawyer for 30 minutes or so for a pretty small fee (usually less than $100.00).  Thereafter if you and he or she decide you have a real problem, you can discuss how much it would cost to retain that attorney to defend you. If you do get sued, do not throw the papers in the trash.  Find someone who can advise you as to how to respond.  Failure to answer a lawsuit usually results in a default judgment which can follow you the rest of your life, even if the allegations are untrue. Good luck.  ... Read More

So my first answer splits a pretty fine hair - "yes" you can be fired while on workers comp leave but "no" you can't be fired because you filed a workers comp claim.  To elaborate - the law prohibits discrimination against (including termination of) an employee because he filed a workers comp claim.  However, if legitimate reasons exist (e.g. employer lost the contract on which you were working, employer no longer needs your position - that is they don't replace you with someone who does the same work, employer cannot do without you and replaces you and has no other jobs for you) then being out on workers comp leave does not immunize you from being fired. Though I am not a comp lawyer, I generally understand that if you are fired while on comp leave, the comp carrier will continue to pay your medical benefits, but will stop paying your lost income benefits. In my experience a lot of companies try to say they have a legitimate reason for firing an employee out out comp leave, but they are really just trying to reduce the dollars the comp carrier is paying out, so as to minimize future increases in their premiums, and to ensure that folks that do file such claims don't come back and file another claim later.  That rational violates the anti-retaliation provisions of the Texas Workers Comp Act. The only remedy for this is to find a labor and employment lawyer who represents employees.  Lawyers.com should be able to provide you with a list of such attorneys in your area. Good luck.... Read More

You question holds two possibilities for the TWC's refusal to pay unemployment benefits.  First, TWC will not pay you benefits for any period of time covered by a severance benefit or payment.  Normally TWC would tell you "you are eligible for benefits but they won't start for 2 months" representing the 2 months severance you received. "Misconduct" is also a reason for denying unemployment benefits.  Misconduct is defined on the TWC's website and it is a bit narrower than the common use of the term.  In general it requires that you violated a written policy of which you had notice or that you did something so outrageous (for example stealing cash from the register) that any common person would know constitutes misconduct. If TWC has otherwise approved your unemployment, but is waiting to pay you until the two months of severance is exhausted, I am not aware of any remedy you have.  If the TWC says you are guilty of misconduct and is denying your unemployment altogether, you may appeal the initial decision to a telephone hearing officer and, if you don't like the hearing officer's decision, appeal it to the 3 commissioners of the TWC and, if you don't like their decision, file a lawsuit appealing that decision.  You must go in that order.  You must carefully meet your appeal deadlines.  Failure to adhere to the deadlines will deprive you of your opportunities for further appeal whether or not you are right in your position. Good luck.  ... Read More

An employee cannot be required to work continue to work for his a private employer after he quits.  However he may forfeit some benefits (for example, payment for accrued and unused sick leave) if he quits without notice.  Also, if you have a written contract you should read it or show it to an attorney who may be able to explain if there are other consequences.... Read More

Contact the Texas Workforce Commission - Labor Law Department.  They administer the Texas Payday Act which requires hourly employees to be paid two times per month for all hours worked.  The procedure is free.  Be aware, this law will help you collect your money, but will not protect your job if the employer decides to retaliate.... Read More

An employer is not required to provide a reason for terminating an employee's employment.  If you want to find out why you were terminated, you could file for unemployment benefits.  If the employer wants to challenge those benefits (assuming you are otherwise eligible) it will have to state a reason that it fired you.  On the other hand, if the employer chooses not to challenge the unemployment benefits, it will not be required to state a reason for the termination decision.... Read More

Despite the common practices involved in paying per diem in various industries, there are actually some very specific rules employers are required to follow when they pay per diem.  In concept, per diem is for the reimbursement of work-related expenses that the employee pays out of his pocket.  Some employers do not pay any per diem and instead require employees to turn in actual expense receipts from which the employer reimburses the employee for the exact amount of those receipts.  Because this process can be burdensome for both the employer and the employee, the IRS sets a per diem rate (usually by county) and permits employers to pay up to this amount in per diem in lieu of reimbursing actual expenses.  Per Diem is also usually reserved for employees who live and work away from home and most of the time it is improper to pay employees any per diem if they are not incurring any regular work-related expenses. Assuming that you are eligible for per diem payments and what your employer is paying is not enough to cover your work-related expenses, you could try turning those additional expenses in for reimbursement and if the employer refuses to pay them, you may be able to deduct those additional expenses on your income tax returns. Also understand that unless you have a contract, your employer can reduce your pay or per diem, demote you, transfer you, or change your job duties any time it wants to.  You can either accept the change or quit.  If you work after being notified of the change, you are deemed to have accepted it.  One exception to the above, the change in pay or reimbursements can only be for the future.  An employer cannot change pay or reimbursement for work already performed or expenses already incurred.... Read More

You employer may not alter the pay rate once the work has been performed.  The policy you cited would likely be ignored by a court or by the Texas Workforce Commission.  You should file a Texas Payday Act Complaint with the Texas Workforce Commission - Labor Law Department within 180 days of the short check.  The forms for the complaint and their contact information are on their website.  ... Read More

Assuming that you have no contract which limits your employer's rights to fire you (i.e. an agreement providing that you can only be terminated for violating policies set forth in the employment handbook), yes.  In fact, absent such a contract, you can be fired for any reason not prohibited by statute (race, gender, religion, etc.)... Read More

An employer cannot improperly designate or re-classify employees as independent contractors.  If it is just your paycheck you are looking to collect, contact the Texas Workforce Commission Labor Law Department and file a Payday Act Complaint.  The forms are on their website.  Be sure to mention the reclassification from employee to independent contractor.  If you or others were not paid overtime pay (other than in your final check) after the re-classification you may have claims under the Federal Fair Labor Standards Act as well.  Those can be pursued through the US Department of Labor - Wage & Hour Division or through a private attorney. ... Read More