Texas Employment Legal Questions

The EEOC has been challenging employers through the Americans with Disabilities Act who terminate an employee who has been off work beyond the 12 week FMLA period. The ADA and FMLA are different statutes and in some cases, an employer may be required to consider extending the leave for an employee, or at least not terminating them when they are off for medical reasons.  Rather, the EEOC is asking that employers at least make it clear to the employee that they can and should reapply when they are able to return to work.  This would not guarantee them a job if there are no openings, but they should be eligible and be considered for an open spot.  You should meet with an employment law attorney and consider filing a charge wiith the EEOC... Read More

Job references and criminal background checks can present huge problems for job applicants, especially if there is wrong information. Depending on which state law applies, it could be argued in a lawsuit that the background check company provided defamatory information that caused you the loss of a job.... Read More

There is no way to fully answer this question in this space.  In brief - employees of most private employers must be paid minimum wage and must be paid 1.5 times their hourly rate for any hours over 40 worked in a single work week.  However, there are several exemptions to this rule which are more fully explained in the Wage & Hour section of the US. Department of Labor's website (www.dol.gov/whd/overtime/etools.htm).  If AND ONLY IF you meet the requirements of one of these exemptions (usually based on your job duties and pay), your employer may treat you as a salaried employee and pay you a flat weekly, monthly or annual salary which is not subject to deduction for quantity or quality of work.  In other words whether you work 45 or 35 hours in a week, your pay does not change.  Many employers try to cheat the system and avoid the obligation to pay overtime by mis-classifying workers as either salaried employees or as contract labor.  If you think your employer has improperly classified you as salaried when you are in fact not and thus should be receiving overtime, you can file a complaint with the Wage & Hour Division of the US Department of Labor - there is one in every large city in Texas (the DFW one is in Arlington).  You could also contact a board certified labor and employment attorney to advise you further about your individual situation  (www.tbls.org).  Look them up on the internet and make sure they represent employees or ask when you call. Texas Employers are not required to furnish insurance to their employees.  But, if they provide it to some employees, they must offer it to all employees. Texas Employers are not required to give paid time off, but if you are appropriately classified as salaried, they cannot deduct pay for less than a full day's absence. Good luck.... Read More

Under the federal Fair Credit Reporting Act, the employer is supposed to notify you and obtain your consent to do a background check.  The employer (or prospective employer) must also provide you with a copy of the report and a chance to explain before it takes negative action against you.  In that perfect world, you explain to the employer or prospective employer that whatever that background check says is incorrect.  The employer doesn't have to take your word and even if you satisfactorily explain the mistake, it can still refuse to hire you or it can fire you or remove responsibilities if you are already employed. However, once you have a copy of the report, you can write to the report provider/vendor and demand that they remove the error on the report.  If they don't you would have a claim against the vendor. If an employer or prospective employer has taken action against you based on a background check, demand a copy of it.... Read More

Sadly, the employer can re-do the business and find you appropriate work nearby. CHECK with your attorney or the Information & Assistance officer to see if the Offer of Permanently Modified Work applies to work 75 miles away. I believe that is the outside limit. IF your job still exists and someone else is doing it, then you have a Labor Code 132a Violation and will need an attorney successful in trying 132a Petitions to pursue this, because it's difficult. When you can PROVE the ONLY reason you are not on the old job is just because the employer is punishing you for claiming comp benefits, you get the old job back reinstatement and a $10,000 penalty (well, up to $10,000), but the proof of an employer's mind-set is nearly impossible.... Read More

With the up-front warning there is often a wide range of options (some much wiser than others) between "What do we have to do?" and What should we do?" ... It is unlawful to terminate an employee because he or she is in a protected class.  It is not unlawful to terminate an employee in a protected class for reasons which are not protected.  Your fact set states that: 1) the company has legitimate non-discriminatory reasons for the adverse employment action; and 2) the company was prepared to and would have taken an adverse employment action, but for the employee's failure to show-up at work on a particular day.  Assuming those facts are both true and demonstrable, no legal response to the decision by the employee seems likely to succeed. However, I have defended dozens of employers in lengthy and expensive litigation and administrative proceedings that could have been avoided or minimized with a little more finesse in the execution of their decisions, even though the decision was legitimate and non-discriminatory. This forum is not well suited to a "What should you do?" question, the answer to which is really one of risk assessment and risk management.  If the employee is likely to respond to the termination with legal action (regardless or the correctness of the decision) it would be worth paying for an hour or two of legal advice about ways you could mange the process so as to seal off any potential claims arising out of the timing of the action or at least be prepared with the materials necessary to obtain a quick disposition of any resulting proceedings. Good luck.  ... Read More

Short Answer: NO An employer who is subject to the Fair Labor Standards Act (this is farily technical but if your employer has more than $300,000.00 in gross income per year it is highly highly liklely to be subject to that law), must pay its employees 1.5 times their regular hourly rate for hours worked over 40 in any work week.  A "workweek" is any 7 day period the employer elects.  Most employers run their workweek from 12:00 a.m. on Sunday to 11:59 pm on Saturday.  However it is permissible to run on other schedules, ie Wednesday to Tuesday. If the employee works more than 40 hours in the workweek, he must be paid for the overtime.  It is not legal (except in certain government employment) for the employer to give the employee an extra day off in a future workweek.  It is permissible for an employer to give an employee an extra day off during the same workweek.  Thus if an employee worked 10 hours a day Monday to Thursday and got Friday, Saturday and Sunday off, no overtime is due.    ... Read More