Texas Employment Legal Questions

Your best bet for unpaid wages is to contact the Texas Workforce Commission, Labor Law Department (not the unemployment folks) and file a "Payday Act" complaint.  This service is free. As for unpaid overtime, the TWC may also be able to help with that but, if not, the US Department of Labor, Wage and Hour Division, will pursue your and your co-employees' claims for unpaid overtime.  This service is also free.  ... Read More

A complete and accurate answer to your question is not possible without futher information and documentation.  However, in general, unless you have some pre-exixsting right (contract, ee handbook) to a severance package, you are not entitled to any serverance or termination benefits (other than unemployment) if you are fired. In connection with many mergers or company sales, there is often a contract requirement that the selling company fire all of its employees and let the acquiring company offer jobs to as many of those terminated employees as it wishes.  If you received an offer letter rather than a termination package, it may mean that the acquiring company wants or needs your services.  If you decline that offer, that does not mean you are entitled to a severance package from your current employer - not to say you can't get it if you ask - just likely not entitled to it. Best to find out if you can be eligible for the termination package before you turn down the employment offer.... Read More

http://www.dol.gov/whd/regs/compliance/whdfs28.pdf See the above link to the US Department of Labor's Fact Sheet on the Family and Medical Leave Act.  In short, if the Company has 50 or more employees in the location your husband works (subject to some exceptions) and your husband has worked at least 1250 hours in the last 12 months, he is entitled to take 12 weeks of unpaid leave in connection with the birth of your child and be guaranteed the right to return to the same or a similar position.  Beyond the above, there are lots of ins and outs of such leave, such as an employees obligation to continue to pay the employee's portion of any benefits he receives, the employer's right to make the employee take all of his vacation during the 12 weeks, and the employee's right to be paid for that vacation if he is requiired to take it. Hopefully the fact sheet or the US Department of Labor's website on this subject can answer any further questinos you have. Good luck.... Read More

Two issues: 1.An employer is not permitted to make deductions, other than taxes or court-ordered child support, from an employees paycheck without specific written permission.  (Texas Payday Act) 2. An employer may not take so much out of a paycheck that the employee's rate of pay is reduced below minimum wage for the period reflected by the paycheck.  (Federal Fair Labor Standards Act)... Read More

1.  Anytime you choose to fire one employee and not the other you are "discriminating" within the dictionary definition of the word. 2.  However, not all discrimination is illegal.  So if an employer fires all of the New York Yankees fans and keeps all of the Texas Rangers fans, it has discriminated, but not on an illegal basis, because there is no protection in the law (at least in Texas) for Yankees fans. 3.  An employer which needs to furlough or lay-off employees due to economic reasons must choose the employees it will lay-off without regard to things like race, age, gender, religion, etc. all of which are illegal grounds of discrimination. 4.  If the sole basis of a lay-off is that the terminated employee is a regular employee and the retained employee is a contractor, then there is no illegal discrimiation.  Now to a bigger point. There is no such thing as a contract employee.  The worker is either an independent contractor or an employee.  Many employers attempt to avoid workers compensation expenses and liability, overtime expenses, benefit expenses, and employment taxes by calling an employee a contractor.  The test to determine the difference is too long and complicated for this answer.  However, the saying that "if it walks like a duck and quacks like a duck it probably is a duck" is a good summary of that discussion.  If the employer gets this issue wrong or is misclassifying an employee as a contractor intentionally, the potential liablity is significant if it gets caught.... Read More

Short answer: Yes. Longer answer: unless you have a contract which says differently, you are most likely an at-will employee and can be fired at any time for any reason or no reason (except illegal reasons such as race, sex or age).  That you have given notice of your intent to resign, does not alter that relationship.  Where employees have sensitive information or client relationships or where the employee is in a position to do damage to the company during the notice period, it is very common for an employer to immediately terminate the services of an employee who gives notice of resignation. Note: I would continue to report to future employers that this separation was voluntary.  You will have to check with the Workforce Commission to see if you are entitled to unemployment benefits for the period of time you would have been employed after you resigned.    ... Read More

Two issues arise with this question.  First, an employer may not withhold wages from an employee's paycheck without specific written consent. Texas Labor Code Chapter 61 (Texas Payday Act).  Some employers obtain such an agreement as part of the initial hire package.  Try to remember what you signed when you hired on.  Also the agreement must be specific.  Something like "Employee agrees that employer may withhold from employee's paycheck any amounts owed by employee to employer" would not be sufficient.  Somenthing that mentions "lost or stolen tools" may be sufficient. Second, the employer may not withhold an amount from a paycheck that would result in the employee making less than minimum wage for the week(s) represented by the paycheck.  Example:  Employee makes $10.00 per hour and works a 40 hour week and is paid $400.00 each week.  Employee has signed the appropriate documents permitting withholding of wages for lost tools and the employee has lost certain tools.  The employer withholds $150 dollars from a single paycheck to cover the cost of the lost tools.  This withholding results in the employee making $250 dollars for the week or $6.25 per hour for that week.  Minimum wage is $7.25 per hour, so that witholding would be unlawful.  To get around this and assuming the employee has signed the appropriate documents, the employer may withhold a smaller amount from several checks, which withholding would not reduce the employee's wages below minimum wage. Good luck.    ... Read More

Your question presents at least two issues and maybe more.  First, an employer who agrees to pay you a certain amount or on the basis of a certain formula, cannot change its mind after you have performed the work.  It can tell that for the next time you work the rate or the forumula has changed and if you do the future work you are deemed to have agreed to the change.  Second, the vast majority of employers (but not 100%) are required by federal law to pay overtime (1.5 times your regular hourly rate) for all hours in excess of 40 in a given workweek.  There are some exceptions to this reqirement if you are a manager, office administrater, or professional (engineer, accountant, lawyer) and you are paid a salary.  Assuming you are not "exempt" from the overtime rules, the first thing to understand is that the overtime kicks in only after you have worked 40 hours in a single week (not after more that 8 hours in a single day).  So your employer could make you work 4 10-hour days and send you home for the rest of the week and not owe any overtime.  Second, unless you are a public employee, the employer must pay the overtime, not just give you time off the next week or later.  Third, the employer cannot make you clock out an then work off the clock.  If the employer requires or permits you to work overtime or has knowledge that you work overtime hours and doesn't stop you it owes the overtime. So to address these questions you could contact the US Department of Labor, Wage and Hour Division.  There is an office in each of the big cities in Texas.  Dallas and Fort Worth share one which is located in Arlington.  They will accept your complaint, investigate and collect the unpaid overtime hours, however the process may take several months.  You can also contact a knowlegeable labor and employment lawyer in your area.  If the employer is failing to pay overtime to all or a large group of its employees, certain class action proceedings are available.  Either way federal law protects you from retaliation for filing complaints about unpaid overtime.  Good luck.  ... Read More

"Allowed" is a tricky word.  There is no absolute prohibition in Texas law that prevents an employer from releasing such information and there is even a good faith protection for employers if they release information about a former employee to a prospective employer which the former employer reasonably believes to be true. That said, realeasing such information is fraught with risk, such as defamation or retaliation suits from former employees if the information is untrue or if the employer gave out the information for the purpose of retaliating against an employee for some exercise of the employee's rights.  Most employers limit their disclosures about former employees to confirmation of employment, dates of employment and last position or title and refuse to say why the relationship terminated.  Good luck.... Read More

The law obligates the employer to pay you for all time you are in its service. (There are some exceptions for on-call employees which don't appear to be applicable to your question.) So if I understand your question, the employer is not paying you for the time you are on the job and at the employer's location but not actually working on a vehicle.  If my understanding is correct, your employer is probably breaking the law. 2 free but not very speedy remedies. First, call the Texas Workforce Commission and ask about filing a "Payday Act" complaint.  This law allows the TWC to go after an employer who does not pay its employees all of the pay they are due.  But don't delay, they can't collect any amounts over 6 months old. Second, contact the U.S. Department of Labor, Wage and Hour Division.  There is one in every major metropolitan area in Texas.  Dallas and Fort Worth share one in Arlington.  They are responsibile for ensuring employees are paid minimum wage and overtime. Finally, you could contact a labor and employment lawyer in your area, but this may not be an economical solution unless a group of you are willing to go in together. Good luck.... Read More

If I understand your question, the employer has reduced the number of hours it is scheduling you to work each week.  Unless you have a contract, you are most likely an at-will employee.  Under the at-will employment doctrine in Texas, you or your employer may end your employment at any time with or without a reason (but not an illegal reason such as race, sex, age, religion, disability etc.) and with or without notice.  Implield within that doctrine is a right for the employer to promote you, demote you, increase or decrease your pay and adjust your hours of work. Without a written agreement, an employer has no obligation to guarantee you 40 hours of work per week, even if it has done so in the past. Good luck.... Read More

The answer to this question is extremely complicated.  You should consult with a private attorney with experience in these matters before you take any action in response to your employer's request that you sign the non-compete agreement.  What follows is a few very general comments on the subject which could be completely inapplicable to you depending on your circumstances and the wording of the proposed agreement. First, most employees in Texas are "at-will" employees who may be fired for any reason or no reason (except illegal reasons [race, sex, age, disability, etc]).  Unless you already have an employment contract which restricts your employer's discretion to terminate your employment, you could be fired with no recourse if you refuse to sign the new non-compete agreement.  However, that fate may be better than signing the agreement. Non-compete agreements are disfavored in the law and will not be enforced unless they are narrowly crafted to provide reasonable protections for an employer's trade secrets or goodwill.  In general, if an employer has already given its employee all of its trade secrets, asking the employee to sign a non-compete after-the-fact in order to protect the trade secrets already provided will usually result in an unenforceable or invalid agreement.  That said, if the employer subsequently gives the employee new trade secrets or new confidential information, the invalid agreement could become valid based on the new information. Non-competes must also be reasonable in terms of 1) time [length of non-compete period]; 2) geographic area [location where competition prohibited]; and scope [activities prohibited] as judged in relationship to the secrets sought to be protected.  So if the employer only sells its goods and services in Houston, a non-compete which prohibits competition in Dallas may be unreasonable.  Non-competes longer than 3-5 years are generally not enforced.  But 1 year may be too long if the secret (e.g. price list or customer list) changes or becomes public knowledge in a shorter time-frame. Non-competes can be very expensive to litigate for both the employer and the former employee.  However, because of the high costs of litigating these agreements, these disputes frequently settle quickly. Finally, with or without a non-compete, an individual cannont steal or take his fomer employer's trade secrets and give them to or use them against the former employer.  The Texas Uniform Trade Secrets Act, provides for damages, penalties, injunctions and attorneys fees if this conduct occurs, even if there is no non-compete agreement.... Read More

Overtime is time worked in excess of 40 hours in a single workweek.  An employer is required to designate a workweek. Most workweeks are Sunday through Saturday, but it could any other consecutive 7-day period.  To determine whether overtime has been worked, you have to look at a single workweek (not a two-week pay period) and see if the employee worked more than 40 hour in that workweek.  If so, the hours in excess of 40 must usually be paid at a rate of 1.5 times the employee's regular rate of pay. Overtime is not incurred just because single workday is longer than 8 hours.  So, for example, an employer could require an employee to work 10 hours/day Monday-Thursday and give the employee the remainder of the week off and no overtime would be incurred. So if your employer required you to work 8.5 hours on Monday, 8 hours on Tuesday, 9.5 hours on Wednesday and 8 hours on Thursday then told you to come in (or leave work) 2 hours early on Friday, no overtime would be incurred.  However the employer cannot accomplish this over a two-week period.  If an employee worked 45 hours in one workweek, the employer cannot give him 5 hours off the next week and avoid the overtime pay obligation. I recognize the unfairness of the employer waiting until you show up the next day and then telling you to clock in 30 minutes late because you worked 30 minutes over your regular shift the day before.  I know of no action you can take to correct this, other than finding a new employer.    ... Read More

Please answer a few questions, so I can better answer your question. 1) Are you going to be the person that is the contractor or the person who is hiring the contractor? 2) Is the project/job the contractor (or you) is going to be doing a temporary project or job or is it part of the regular operations of the employer? 3) How will the contractor (or you) be paid - by the hour; by the day; on completion of the project? 4) Who will provide the supplies, materials, equipment? 5) Who will supervise the work?   Let me know these things and perhaps I can give you a more intelligent answer to your question.... Read More

Well to start with, your question reveals another issue.  There is no such thing as a 1099 employee. Someone who performs labor for a company is either an independent contractor or an employee.  If the person is an independent contractor, he is paid by the job, is responsbile for his own tools, supplies, is not paid by the hour, does not take direction as to the details of his work from the company and may loose money if he doesn't bid the job correctly. Employees, on the other hand, usually record their time, are paid by the hour, are subject to the direction of the employer who provides supplies and tools. Many employers try to get out of paying workers comp, taxes, overtime and benefits by calling folks who are really employees independent contractors. If you worked overtime during the time you were a "1099 employee" and were not paid time and a half for the overtime hours, you have another claim. As for the paycheck issue, you can contact the Texas Workforce Commission, Labor Law Department and file what is known is a PayDay Act Claim.  If any of that pay relates to a time when you were a "1099 employee" be sure to tell them that you were really a misclassified employee.  They will pursue the claim for you for free, but it takes several weeks. If you are owed any significant amount of overtime or if the employer treated a number of folks who who should have been classified as employees as independent contractors, you can contact a labor & employment attorney in your are or the US Department of Labor - wage and hour division.... Read More

Most employers are obligated by Federal law to keep accurate records of the time spent by employees working and to pay them accurately from those records, including overtime when warranted. Texas law, requires employers to pay employees for all hours worked. To the extent your manager's actions cause you not to be paid for work performed or cause you not to be paid overtime if you work in excess of 40 hours per week, your managers is likely causing your employer to break the law. You are in a tough spot.   First, start keeping an accurate record at home of all of the time you actually work. If you are loosing significant monies then you'll have to consider what steps to take next. If you report this directly to the employer first, you will likely be fired.  If your employer is doing this to a lot of people, you may want to quietly contact a lawyer in your area with experience in overtime claims.  If it is just you who is affected by this conduct, there are two government agencies you can contact for help: 1) Texas Workforce Commission/Labor Law Deparment - these folks administer the Texas Payday Act, which requires employers to pay employees for all hours worked as well as a free administrative procedure to recover unpaid wages.  2) US Department of Labor/Wage & Hour Division - these folks administer the Fair Labor Standards Act, which requires most employers to pay employees overtime (time and a half) for hours worked each week in excess of 40. Good luck.... Read More

Eight weeks of pay for 11+ years at the company is not very reasonable, especially if you have a valid legal claim. To evaluate your claim, however, we would have to have a consultation where I ask you many questions. In Houston, many oil companies give 2-4 weeks of severance pay for every year of service. On the other hand, an employee at will has very limited rights and in Texas, as well as in most states, is not entitled to any severance pay.... Read More

Texas follows the at-will employment doctrine.  This means that an employer can fire, promote, demote, transfer, change job duties, change work locations etc. of an employee at any time for any reason or no reason.  By the same token, the employee is free to quit anytime he or she desires. Two caveats to the above: 1) the employer cannot reduce pay for work already performed.  It can only do so into the future; and 2) the employer cannot discriminate against a worker on the basis of his age, sex, race, national origin, religion, color, disability, filing of a workers comp claim or refusing to commit a criminal act. Assuming both positions were at-will positions (ie you son had no contract in either), then most likely the employer was free to promote and demote your son and raise and lower his compensation for any reason or no reason at any time with or without notice. Otherwise, if you think there is more at issue, you should contact a Texas attorney in or near the county in which your son works or worked and preferably one who is Board Certified in Labor & Employment Law.... Read More

In the absence of a contract, including a union contract, there is generally no limit to the number of hours an employer can ask or required an employee to work in a work day or work week.  However, when an employee's hours exceed 40 in a single work week, most employers are required to pay overtime which is 1.5 times the employee's usual hourly rate.  There are execeptions to this overtime pay requirment for managers, owners, professionals, office administrators and others exempt from the overtime requirements of the FLSA.... Read More

An employment record is normally a private matter and most employers do not say why a person was fired. Many employers won't even say there was a firing, rather, they simply verify dates of employment. Perhaps you should hire a reference-check company to see exactly what, if anything, they are saying about you.... Read More