Texas Employment Legal Questions

I have received this type of inquiry on a number of occasions and I have sent a number of people to: Laura Diamond Riggs Alshire & Ray PC 700 Lavaca, Ste. 920 Austin, TX 78701 512-457-9806 Ms. Diamond does a lot of work in this area of the law and can probably help you or refer you to someone who can.  I am not related to Ms. Diamond or her firm and I do not receive any compensation for referrals.  Good luck.    ... Read More

An employer cannot change the wage rate of an employee for work done in the past.  However, absent a written agreement to the contrary, there is no minimum amount of notice required to change the wage rate for work not yet done.  Thus for example, if an employee has regularly made $10.00 per hour, his employer could legally chage his wage rate to $9.00 per hour (or $12.00 per hour) at the beginning of his next shift or in the middle of the shift as to the hours not yet worked.... Read More

If the employer has more than 15 employees, it is prohibited from discriminating against employees on the basis of their religion (or lack thereof).  However until there is an actual loss of employment or pay, or promotion or some other tangible benefit of employment, there is little the law could do on the basis of a bad evaluation alone. ... Read More

I can't speak to your question about TABC requirements.  The TABC website has a pretty good FAQ section and seems easy to navigate. Employers with 15 or more employees are prohibited by law from sexually harassing employees.  The employee has an obligation to report the harassment to management or to the Company's HR department unless the harasser is the only person to whom such a report could be made.  It is also against the law to punish or terminate an employee for making a complaint or for serving as a witness in someone else's complaint.  If the matter cannot be resolved internally, you must file a complaint with the EEOC or Texas Workforce Commission - Civil Rights Division within 180 days of the date of the harassment.  You can actually make such a report up to 300 days from the date harassment but any report after 180 days limits your remedy to a federal lawsuit.  Federal courts in Texas are not regarded as the best place to bring such a lawsuit.  Almost any employer who makes an employee work off the clock is breaking a number of different laws.  Your are entitled to be paid your regular hourly wage for each hour of work and you may also be entitled to overtime for each hour of work over 40 hours in a single work-week.  Complaints about failure to pay regular wages can be directed to the Texas Workforce Commission - Labor Law Department.  Complaints about failure to pay overtime can be directed to the US Department of Labor Wage & Hour Division.  ... Read More

How is it that you were unaware that you were continuing to receive the car allowance after you were transferred into the job that was not "car-elibile"?  Wasn't the item listed on your paycheck stub? Courts have allowed lawsuits to recover overpayments to employees.  It is not possible to say whether your employer could prevail in such a case against you without knowing more.  An employer may not withold amounts, including overpayments, from a Texas employee's paycheck without the employee's written permission.  Well-counseled employers may have some language in their initial employment documents (signed by the employee) which would permit such withholding.   However, even in that event, the employer may not withhold an amount which would cause the employee to earn less than minimum wage for each week included in the paycheck.  An employer would likely terminate an employee who refused to repay an overpayment.  ... Read More

Probably not.  In general, an employer who is a subscriber to the Texas Workers Compensation Insurance program is automatically responsible for any on the job injury without the necessity of a lawsuit.  The trade-off for the automatic liability is that, in general, an employee cannot sue his employer for an on-the-job injury.  There are some very limited exceptions to this rule in the case of an intentional act by the employer which causes the injury or an act caused by the employer's gross negligence.... Read More

Texas is an at-will employment state.  Employers may specify the hours required and the dates and times those hours are to be worked.  With respect to their assigned work schedule, employees must either "take it or leave it" if they can't work out a different arrangement by agreement.... Read More

A nursing care facility may elect, if the employee or the employee's union agrees, to what is known as an "8 and 80 system" for calculating overtime.  In electing to use this system, the employer obligates itself to pay overtime (1.5 x the regular hourly rate) for each hour worked in excess of 8 in a day and 80 hours in a two week period.  Google the term "8 and 80 system" and see if you can find an explanation that describes the specifics of your situation. For example your question does not specify whether you are being paid overtime for your daily overtime hours (in excess of 8) when your total hours for the two week period do not exceed 80.... Read More

Many employers try to cheat the system by mis-classifying employees as contract labor. Until they get caught, this keeps them from having to pay overtime, employment taxes, employee benefits, workers compensation and other employment-related benefits. I take it from your question that you are no longer employed by this company.  Is that right?  What is the nature of the $3,000.00 of back pay?  Did you ever work over 40 hours in a work-week (usually Sunday - Saturday)?  If so, were you paid overtime, straight time or nothing for these extra hours?  Did other regular employees get benefits that you did not get?... Read More

Legally, the employer may pay you anything they wish. Unlimited, in their discretion. I am not aware of any 3 month rule, and do not believe such rule exist I suggest you go on line to Wage and Hour Division (WHD) U.S. Department of Labor http://www.wagehour.dol.gov/. They have investigators that answer such questions.... Read More

I hear this question all the time - mostly from employers.  There is multi-point test promulgated by the IRS (IRS Form SS 8) and a version of that test promulgated by the Texas Workforce Commission(TWC Form C8).  Check these out on their websites and compare them to your own situation.  In short, there is no such thing as a 1099/Contract employee.  If the worker is an integral part of the employer's operations and if the employer exercises day-to-day control over the employee, the employee is likely a W-2 employee.  If the worker is not part of the employer's regular operations or the worker works independently setting his own schedule, employing assistants and purchasing materials as need be and is paid by the job with a possibility that he could profit or lose money on the deal, then he might be an independent contractor.  Many employers intentionally misclassify employees as independent contractors in order to avoid, legal obligations to pay benefits, overtime, employer taxes, unemployment taxes, workers comp and overtime.  The short-term financial incentives are significant.  The long-term risks are enormous and the potential liability is often a company-killer.  if you believe you have been misclassified as an independent contractor and you should have been classified as an employee, you could choose to complain to a government agency or a court, depending on what losses you have suffered as a result of the misclassification.  If you were worked overtime (more than 40 hours per week) and were not paid 1.5 times your hourly rate for the overtime hours, you could complain to the US Department of Labor/Wage & Hour Division or the courts through an attorney.  If you were denied employee benefits (401k, Health Insurance etc.), the Department of Labor may also take your complaint.  If you were fired, be sure to explain your belief that you were actually an employee when you apply to the TWC for employment benefits.  If you just want the problem fixed, a complaint to the IRS may trigger an audit.... Read More

There are multiple issues present in your question.  If the employer is required to pay overtime (most are) he has no choice but to pay 1.5 time the regular hourly rate to employees who work more than 40 hours per week.  If the worker is doing a job which the company provides to others (ie a welder for a welding company, a bus driver for a charter company, a laborer for a landscape company) then the worker is an employee and not an independent contractor.  The employer is required to withhold taxes and match those taxes with the employer's share of employment taxes. Employers are required to pay non-exempt employees (hourly non-management employees) at least twice a month.  Contact the Texas Workforce Commission - Labor Law Department and file a "payday act complaint" for the non-payment of wages.  Contact the US Department of Labor - Wage and Hour Division for the non-payment of overtime. You can also contact a private attorney to assert these claims for you in court. ... Read More

An employer may not deduct any sum from a paycheck (except taxes and court-ordered child support) without written permission from the employee.  Even if that written permission was given, the deduction cannot result in a paycheck that pays less than minimum wage.  If you believe that the deduction was improper, you can file a "payday act complaint" with the Texas Workforce Commission Labor Law Department.  They will compel the employer to repay any wrongfully withheld wages.  Their services are free.... Read More

Filling out an application has nothing to do with your right to be paid.  The boss is or was trying to cheat you.  If your employer fails to pay you, the Texas Workforce Commission - Labor Law Department (separate department from the unemployment folks) will accept your written complaint and force the employer to pay you.  However, this process does take a number of weeks.  You can contact them at 800-832-9243.  Good luck.... Read More

Off the clock work is a common issue and violates a number of laws (not usually criminal laws).  Management may be talking out of both sides of their mouths when they say "don't work off the clock" ["wink wink -  we really do insist you keep working"] but that is literally the correct instruction.  Most employees are entitled to be paid 1.5 times their usual hourly rate for hours worked over 40 in each workweek (overtime).  Many employers try to avoid this costly expense by minimizing overtime hours, either legitimately by ensuring employees get off the clock and go home after their regular shift or illegally by requiring employees to keep working off the clock. A typical employee in your wife's situation should obey her supervisor's instructions not to work off the clock.  Yes, an employee can be fired for ignoring that instruction.  If the employee gets near the end of her shift and important or assigned work remains, she should seek her supervisor's instructions to either keep working on the clock or to get off the clock and let someone else handle the remaining work.  If the employee is worried that she may get fired for this course of action, she should seek legal advice from a Board Certified Labor and Employment Lawyer who represents employees (many only represent corporations).  See www.tbls.org for a listing of board certified attorneys. Good luck.... Read More

In general, an employer cannot tell you where you can work once you leave your employment with that employer.  If there was a legitimate non-compete agreement in place, the employer might be able to restrict you from working for one of its competitors, but would not otherwise be able to tell you where you could or could not work. Typically handbook provisions are not contracts, especially where the employer reserves the right to change them at any time (See the first page or two of the handbook for this language.).  Your statement indicates to me that someone told the employer he/she/it could not attempt to regulate post-employment conduct of the employees. Good luck.... Read More