Texas Employment Legal Questions

It depends.Under the Family and Medical Leave Act (FMLA), an employer with more than 50 employees must allow an employee who has worked at least 1250 hours within the last 12 months at a facility at which at least 50 employees are employed within a 75-mile radius up to 12 weeks of paid and/or unpaid leave as a result of a serious health condition.  I think your emergency gall bladder surgery almost certainly qualifies as a serious health condition.  If it was an emergency on May 15, 2023, you were certainly within 12 weeks at the time of the call on May 24, 2023.Facts not included in your question that are important are:  1) Does your employer Club 4 have more than 50 employees; and 2) had you worked at least 1250 hours within the 12 months preceding your emergency surgery at a facility at which at least 50 employees are employed within a 75-mile radius?I'm going to speculate that Club 4 is a fitness franchise, and I know there are numerous Club 4 fitness centers in the DFW area.  I'm also going to speculate that your employer is a franchisee, and not the franchisor.  I'm going to speculate that an individual fitness center probably does not employ 50 employees.  So it may be important to learn what other locations your particular franchisee employer owns in the area, and how many total employees the franchisee has spread out among its DFW area locations.... Read More

I believe your best bet to address this is to call the Occupational Safety and Health Administration ("OSHA").  That agency is tasked with ensuring that you work in a safe and healthy workplace.  If you are retaliated against for doing so, OSHA provides for a cause of action against your employer for retaliation.  OSHA's tel. Number is - 800-321-6742. ... Read More

If you were denied benefits, you should appeal the decision within the time frame provided by TWC. You have to go through each level of the appeals process if you keep getting denied. Once you reach the last level, you could file suit against the agency for denying your benefits. However, if they have a valid reason for denying your benefits, you may not be able to move forward with a lawsuit.... Read More

You may have a case for age discrimination, but you would have to provide a lot more information so that your claim can be fully assessed. The Age Discrimination in Employment Act protects you from being treated differently because of your age. You would need to file a charge of discrimination to bring your claims before Texas Workforce Commission and the EEOC. ... Read More

There are instances where an employer can withhold wages at the end of employment, but only if you owe them money for some reason (ex., wage advance, relocation agreement, etc.) and have agreed to let the employer offset what you owe against your wages.  If you do not owe them any money, then they owe you ALL wages earned.  You should consider filing a claim with the Texas Workforce Commmission for unpaid wages.  Here is the link: https://www.twc.texas.gov/jobseekers/how-submit-wage-claim-under-texas-payday-law  ... Read More

The appeal hearings (usually conducted by telephone conference) are designed to be conducted without attorneys.  Though having one is certainly permitted.  The hearing officer will guide both parties though the process, so you need not worry about knowing when to speak and when not to speak.  However, you should be prepared by knowing what you need to say.  The TWC has rules and guidance on its website about these hearings.  For instance, you should be familiar with why the commission initially denied your claim and be prepared to address why that was incorrect.  If the commission made a factual mistake, then you should have testimony (from yourself or other witnesses) or documents showing that it was incorrect and what the true facts are.  Other witnesses can be joined on the call.  They don't have to be present with you.  On the notice you received with the hearing date and time, there is a fax number or email address to which to send documents in advance of the hearing.  If documents are part of your proof as to why you are entitled to unemployment, make sure to sent them in on time in advance of the hearing and send a copy to the District's HR office.  If there are several documents, I would hand-number each page, so that when you are discussing something on the phone, everyone can get on the same page quickly. If both you and the district are in agreement as to some or all of the facts, but you disagree with the commission's application of a rule or law, then you might think about consulting a lawyer.  However, if you do your reasearch on the commission's website, you will find guidance and interpretation of the rules and laws as well.  You should be prepared to provide the hearing officer with the citation to any guidance or interpretation you find that is helpful to your case. Good luck!... Read More

An employer covered by Texas and federal anti-discrimination laws (which means an employer with at least 15 employees) has an obligation to take appropriate remedial action when it determines that an employee has been subject to a hostile work environment. While a single incident of harassing conduct would generally not create a hostile work environment, a fact-finder might reasonably conclude that a single incident involving physical assault does do so. Without dispute, if the respondent slapped the complainant's arm in anger, this would constitute workplace violence and justify severe discipline, including termination of the respondent's employment. However, if the respondent patted the complainant's arm in a joking manner, this would not constitute workplace violence. While it might justify some discipline, I am not aware of any authority that would fault an employer for not terminating the respondent's employment under these facts. Given that this incident occurred during a sales call, were there other employees present? Was the client present? Conducting a thorough investigation requires the employer interview all witnesses, including -- as awkward as it might be -- the client. Ultimately, based on information from all witnesses as well as the complainant and respondent, you should draw a reasonable conclusion and take appropriate remedial measures.... Read More

Your employer has a legal obligation to engage in the reasonable accommodation interactive process in good faith. Your employer does not have a legal obligation to provide you with the accommodation of your preference. Depending on the facts and circumstances, your request to work remotely might or might not be reasonable. If your employer suggested another obligation which would have allowed you to perform your essential job functions, then it would have complied with its legal obligation. If your employer refused to engage in the reasonable accommodation interactive process in good faith or otherwise failed to provide you a reasonable accommodation, and if your impairment otherwise qualifies as a disability, then you might have one or more claims under the Americans With Disabilities Act and related state law.... Read More

When a person has worked somewhere for a long time, it's usually possible to negotiate a separation agreement. Were you offered any type of severance money? It is usual to be terminated after working somewhere for 20 years. It is possible that the company has violated a labor or employment rule. You should explore whether they have violated the Title VII of the Civil Rights Act or some other provision that protects workers.... Read More

The short answer is "No."  The Texas Payday Act states that hourly employees must be paid, at minimum, twice per month on pay dates that have been previously established by the company.  That said, I can't tell from your question whether the reason you didn't get paid on time was that the employer was punishing you for failing to clock in for an entire week or whether, since you didn't clock in for an entire week, the paycheck was not prepared accurately or on time. If the delay was punishment, then the employer probably violated the Payday Act.  If the delay was unavoidable becuase you didn't punch in for an entire week, the employer may have technically voilated the Act, but I'm not sure the Texas Workforce Commission (TWC), which enforces the act, would take any action. In any event, if you want to do something about the situation, you should contact the TWC and ask to file a Payday Act complaint.  If you choose to do so, bear in mind two things:  1) the process can take a couple of months - if the employer makes up the skipped paycheck in the interim, there is probably nothing the TWC will do; 2) the statute does not contain any protection against retaliation - if your employer fires you because of the complaint, you will not have any legal remedy.   Good luck.... Read More

Usually, no.  The Texas Payday Act states that an employer may not deduct any amounts from a paycheck except required taxes and child support unless it has written permission from the employee.  The second thing to know is that even if the employer had such written permission, it violates the Federal Fair Labor Standards Act if the deduction causes the paycheck to be reduced to an amount that results in an hourly wage which is less than minimum wage. You may file a Payday Act complaint with the Texas Workforce Commission - Labor Law Deparment to recover monies owned to you by way of an unlawful deduction.  See its website for the forms.  You have 180 days from the date you should have been paid to file the complaint.  The process takes some time, but it is free. Good luck.... Read More

Let me clarify the exempt/non-exempt issue before I try to answer your question.  Employers who make more than $500k per year in gross revenue and have involvement in interstate commerce (which almost every employer does) must pay employees at least minumum wage and pay them overtime for hours worked in a single week over 40.  The requirement to pay overtime is subject to some statutory and regulatory exemptions that are too lengthy to explain here in full.  For example, if the employee is a professional (Doctor, lawyer, accountant, engineer and others that require advanced education) or a administrator (someone who has the ability to interpret policy and/or make recommendations about important issues - like the head of HR) or an executive or member of managment and there are others are all exempt from the overtime payment requirement as long as they are paid a consistent salary over about $23,500 per year.  The exemption tests are based on job duties, not titles. A differrent set of laws prohibits discrimination in pay on the basis of race or gender, among other things.  To determine whether there is a violation of those laws, one must ask whether others are being paid more for the same or substantially similar work and whether the reason for that difference is race or gender.  In connection with this inquiry, it doesn't really matter whether those employees are exempt or non exempt.  If their total pay is higher than yours and the reason for that difference is race or gender, then your employer is probably violating the law.   Many employers get the classification issue (exempt v. non-exempt) wrong, either through lack of understanding of the law or just plain cheating the system.  If an employee is mis-classified as exempt and is working more than 40 hours per week, that individual is losing money.  However, the reverse is not necessarily true.  A company can never go wrong paying an employee hourly, even if that person is the presiden of the company.   If you think you are being discrimiated against because of your race or gender, you should contact the EEOC or the Texas Workforce Commission - Civil Rights Division (doesn't matter which but the EEOC is a little scarier for employers).  If you think you have been mis-classified as exempt, when you really should be hourly, you should contact the US Department of Labor, wage & hour division.  Both the EEOC and the DOL have websites that will explain these matters further.  ... Read More

There are several issues wrapped up in your question.  Let's start with the term, "1099 employee" - while I recognize that term is common and is a pay status that is frequently [mis]used, legally there is no such thing.  If you are an employee, taxes are withheld from your check and you get a W-2 at the end of the year.  If you are an independent contractor, you are paid by the job and you get a 1099 at the end of the year. Oversimplifying things a bit, you are an employee if your employer tells you when and where to do your work, gives you the tools and supplies with which to do your work, and supervises the details of your work.  Further, if the work you perform is an integral part of the goods and services the employer provides to his customers, you are probably an employee.  You are a contractor if you provide your own tools and supplies, if you are free to hire other employees to do the work, if you pick your own schedule, if you are free to work for other people.  Guessing from the context of your question, I'd say you are an employee.  Which means you should be getting overtime and any other benefits, such as workers comp or insurance, the employer offers other W-2 Employees.   Whether you are a contractor or an employee and unless you have a written contract that says otherwise, your employer is free to change your wages or pay rate on a go-forward basis (ie for the work you do in the future) but he is not free to change the rate of pay for the work you have already done. You use the word "salary".  Are you paid a flat rate per week or per day for all hours worked or do you get paid for the number of hours you actually work?  Do you ever work more than 40 hours in a single week?  If so, does your employer pay you 1.5x your hourly rate for the hours over 40?  If you are working more than 40 hours per week and not getting overtime, you should visit the U.S. Department of Labor's Wage & Hour office there in Houston and discuss your situation.  ... Read More

The answer to your question turns on whether you meet the requirements for an exemption to the overtime pay requirements of the federal Fair Labor Standards Act (FLSA).  If you are exempt, your employer is not required to pay you overtime pay.  Further, absent some industry-specific regulations, in general there are no limits on the number of hours an employer can require you to work. Whether or not you are exempt depends on a number of factors including whether or not you are paid hourly or on a salary basis, whether or not your compensation is subject to increase or decrease based on the quantity or qualty of your work and what job duties you regularly and customarily perform.  So the determination of your status as exempt or non-exempt is one that can't be resolved in this forum.  That said, my quick search of several sources on the subject indicates that RNs are often considered exempt under the Professional exemption to the FLSA which also covers doctors, lawyers, accountants, engineers and other for whom advanced education is required for the job.  You can get a definitive answer to that question by visiting with your local US Department of Labor Wage & Hour office.  There is one in all of the major Texas cities.  Dallas and Ft. Worth share one located in Arlington. If you are exempt and the work-load situation you describe appears to be a permenant condition of that position, consider using your remaining time there to look for another job.  ... Read More