Articles Posted in Workers’ Rights

Under Texas workers’ compensation law, employees who are unable to work because of injuries or illnesses they suffered during or in the scope of their employment are entitled to income benefits. Injuries are under the course or scope of employment when they occur while the employee was furthering or carrying out the employer’s business interests.

Even though Texas is an at-will state, Chapter 451 of the Texas Labor Code prohibits employers from discriminating or retaliating against employees who file a workers’ compensation claim. Specifically, an employer cannot retaliate against an employee for 1) filing a workers’ compensation claim; 2) hiring a lawyer to represent them in a workers’ compensation claim; 3) imitating procedures under a workers’ compensation claim; or 4) testifying in a workers’ compensation proceeding. Importantly, for these protections to apply, the employer must be a part of the state’s workers’ compensation plan.

Employers may try to hide their true motives behind a legal reason, and it is crucial that Texas employees who believe their employer retaliated, discriminated, or terminated their position based on their workers’ compensation claim seek legal representation.

The Fair Labor Standards Act (FLSA) is a federal law that provides employers with specific employment standards they must abide by. Employers must conform to the minimum wage, age, record keeping, and overtime rates the FLSA establishes. Texas employees whose employers violate these standards may file a lawsuit asserting their rights under the FLSA.

Employees can join together to file their claims under the collective action process. To bring a collective action, the employees must be “similarly situated.” Similarly situated employees are those that are subject to the same employment policies and procedures, even if they work in different locations or divisions. Typically, these actions are based on employee misclassifications, wage discrepancies, and/or break times.

Collective actions are similar to class actions; however, there are distinct procedural differences between the two processes. First, collective actions require the potential employees to “opt-in” to the lawsuit. Opting-in requires the employees provide written consent to be a party in the lawsuit. Employees that do not opt-in will not receive the benefits of the judgment and will not be bound by the ruling. In contrast, class actions automatically include all members of the class, and those that do not want to be involved must opt-out. Next, courts will only certify a lawsuit as a collective action after they conduct a two-part inquiry. Finally, a class action statute of limitations can be tolled while the court determines whether the employees can establish the proper class. Alternatively, the statute of limitations for collective actions will run until an employee files a consent to opt-in.

Texas employers that cite background checks in their personnel decisions must comply with specific procedures and statutes. Employers will typically include background checks in their hiring, retention, and promotion policies to evaluate a person’s work, education, financial, and criminal history. Although background checks are an integral part of workforce development, employers must protect employee’s rights in the process. The Federal Trade Commission (FTC) and the Equal Employment Opportunity Commission (EEOC) enforce the standards put forth through the Fair Credit Reporting Act (FCRA) and federal protections.

The EEOC requires employers to treat their applicants and employees equally before they request or review their background information. Employers cannot discriminatorily select which applicants and employees they request information for based on a person’s protected class. Under the FCRA, employers must take additional steps before they request an applicant or employee’s background information. The FCRA requires employers to:

  • Inform the person the employer might use the results of the background check to make an employment decision;

Texas is an “at-will” employment state. This classification allows employers to terminate an employee for almost any reason. Texas employers can modify or terminate any or all of the terms of an employment relationship with or without warning or cause. Although this arrangement seems inherently unfair — and in some cases it is — there are some protections for employees.

The statutory exceptions that protect Texas employees from wrongful termination include state and federal employment discrimination laws, protected activity statutes, whistleblowing protections, anti-retaliation laws, military or jury duty requirements, and union activity protections. Additionally, the courts have enumerated public policy and contractual exceptions. The Texas Supreme Court created one of these exceptions in Sabine Pilot Svs. V. Hauck. The Sabine Pilot Rule prohibits employers from terminating employees based on their refusal to engage in illegal activities.

The Sabine Pilot Doctrine provides Texas employees with employment protections if they face wrongful termination because they refuse to commit an illegal act. To assert this protection, the employer must have demanded the employee commit an act that could lead to criminal prosecution, if committed. Common examples include asking employees to forge safety documents, release confidential information, provide customers with unprescribed medications, and dispose of hazardous materials in an unsafe way.

The Family and Medical Leave Act (FMLA) is a labor law that provides eligible employees with the right to take job-protected, unpaid leave for up to 12 weeks per year for family and medical reasons. Under the FMLA, eligible employees who take this leave will retain their group health benefits. Generally, employees are eligible if they worked for their employer for 12 months, for at least a minimum of 1,250 hours, and at a location where the organization employs at least 50 employees within 75 miles. Employees can take leave in specific situations, including during and after the birth of their newborn, after a child is placed with the employee for foster care or adoption, to care for a spouse, child, or parent with a severe medical condition, or when the employee cannot work because of a critical medical condition. Additionally, in 2008, the FMLA afforded additional benefits to military families through the Military Family Leave provision.

The “Exigency Leave” portion of the FMLA provides additional protections to qualifying employees whose spouses, parents, or children are deployed or going to be deployed to a foreign country. Similar to typical FMLA requirements, individuals who want to use this leave must work for a qualified employer and meet eligibility requirements. This leave allows the individual to take a total of 12 workweeks of leave to address issues that often arise when a family member is facing deployment. For example, the leave is designed to allow family members to arrange for daycare or attend official military ceremonies.

Additionally, Military Caregiver Leave allows qualifying spouses, parents, children, and next-of-kin to care for their military family members if they are suffering from qualifying injuries or illnesses. An employee can take this leave as long as they meet eligibility requirements and work for a qualified employer. This leave provides caregivers with the right to take a total of 26 workweeks of unpaid leave during a single 12-month period.

Under the Due Process Clause of the Fifth and Fourteenth Amendments, Texas government and public employees are entitled to certain protections. Generally, the Clause prohibits the government from depriving individuals of their life, liberty, or property interest without due process. In most cases, Texas government employees reasonably expect to continue their employment. This reasonable expectation results in a protected property interest.

Texas government employers should provide their employees with their due process rights before terminating their employee’s positions. Due process includes providing an employee with notice and a fair hearing. If a Texas employee believes their employer violated their due process rights, the courts will evaluate their case by examining two main factors. First, the court needs to determine whether the individual has a protected interest in continued employment and, second, whether the employer provided them with notice and a suitable level of process.

Typically, an employee’s expectation derives from their employer’s handbook or policy. In these cases, an employer’s policy or procedure may indicate that termination may only occur for “just cause.” Sometimes employer’s policies will further explain that other adverse employment actions, such as demotion and suspension, cannot happen without just cause as well. Although there is no official definition for “just cause,” there are many factors the courts will examine to determine whether the circumstances meet the threshold. Some elements include: the warning, the reasonableness of the prohibited behavior, the inquiry to determine fault, if the investigation was fair, whether the rules are applied consistently, and the employee’s record. Even if a Texas employer’s handbook, contract, or policy does not explicitly provide a property interest, their past practices may establish otherwise.

The time a Texas employer has to pay their employees their final paycheck depends on the circumstances surrounding the employee’s separation. There is no federal employment law that mandates an employer provide their employee with their last paycheck immediately; however, the Texas Payday Law provides employers with specific requirements.

Texas Payday Law governs all Texas businesses regardless of their size, excluding employers at the federal, state, and political subdivision level. Anyone who performs a service for compensation is an employee, except independent contractors and close relatives of the employer. Typically, unless there is a written agreement, employers must pay their employees in United States currency and deliver them their funds directly during working hours or through direct deposit. Employees have 180 days from the date their wages were due to file a claim for unpaid wages with the Texas Workforce Commission.

When an employee quits or is constructively discharged from their employment, the employer must pay him or her their final wage by the next regular payday. In instances where an employee receives paychecks on a monthly cycle, they must wait until the next month’s due date to obtain their final wage. If an employer terminated an employee, either by firing or laying them off, the employer must pay the employee within six days of their discharge.

Misclassification often occurs when a Texas employer classifies an employee as an independent contractor as opposed to an employee. In some instances, a business may do this inadvertently; however, it is important to keep in mind companies receive many benefits when they classify employees as independent contractors. Employers may misclassify employees as independent contractors to avoid payroll taxes and benefits, and to circumvent wage and hour laws.  If an employer misclassifies an employee, the employee can file a status request by submitting IRS Form SS-8 with the IRS. Employers are prohibited from retaliating against employees because they filed this form.

Generally, the IRS will only allow a request from an employer or employee to determine employment taxes and withholdings. It is essential that Texas employees appropriately and accurately complete the form and provide all required information. Some critical information includes how the employee obtained the position. Specifically, the IRS needs to know whether the job was through an employment agency, general application, or a bid. Further, the employee should provide detailed information about their job duties and the work they performed. The employee must provide a thorough explanation regarding why they believe their categorization is incorrect. The IRS will also review any written agreements or contracts.

The IRS will determine whether the employer had behavioral and financial control over the worker, and what their relationship entailed. The IRS will also evaluate training, assignments, problems, routines, and roles of other workers. Further, it will consider who provides equipment and reimbursements. Financial control determinations also include examining the type of pay, who pays the worker, and what the economic risks are. Finally, the IRS will investigate benefits, penalties, non-compete agreements, union agreements, and how the business represents its workers to the community.

Employers who require employees to take lie detector tests may be in violation of state and federal anti-discrimination laws. The Employee Polygraph Protection Act (EPPA) is a federal law that bars private employers from requiring potential or current employees to take lie detector tests. This law prohibits employers from using a polygraph during pre-employment processes or during the course of employment. Generally speaking, private Texas employers cannot use or inquire about lie detector test results to discriminate against an applicant or employee. However, the law does not apply to federal, state, and local government employees.

There also some exceptions in the private sector. Certain businesses, such as security firms and pharmaceutical companies, may lawfully require their applicants and employees to take lie detector tests. Additionally, some private employees who are suspected of financial crimes against the employer may be subject to a lie detector test.

The EPPA specifies that most people have a right to employment without being burdened with a lie detector test. In instances where a lie detector test is permitted, the employers must follow strict guidelines regarding testing conditions and procedures. For example, Texas requires that anyone who performs lie detector tests must be licensed. Additionally, the examiner must have professional liability coverage and abide by confidentiality rules.

Texas employees who have suffered discrimination in the workplace may utilize two agencies to bring an employment discrimination lawsuit. These two agencies are the Texas Workforce Commission (TWC) or the Equal Employment Opportunity Commission (EEOC).

Federal employment discrimination lawsuits include discrimination complaints based on retaliation, national origin, disability, gender, race, age, pregnancy, and religion. Texas has implemented the Texas Commission on Human Rights Act (TCHRA). In addition to the federal protections, the TCHRA also protects employees from discrimination based on genetic information.

The EEOC is a federal agency that enforces federal employment discrimination laws. The Age Discrimination in Employment Act, Americans with Disabilities Act, and Title VII of the Civil Rights Act, are all administered by the EEOC. The TWC is a state agency that provides workforce services to Texas employers, job seekers, and employees. The TWC enforces the TCHRA.

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