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Matthies Law Firm, P.C. |
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Summary of Texas Employment Laws
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Under current Texas state law, most employees (with certain listed exceptions) must be paid at least $3.35/hour. Thus, for employers which may be exempt from the FLSA, it is important to note that there may be coverage under state law. Employees who are not paid Texas minimum wage may sue to recover the amounts underpaid, as well as an equal amount in liquidated damages. There is no state requirement for payment of overtime.
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It is unlawful for companies which run retail establishments to force an employee to work 7 consecutive days without a 24-hour break (but it is okay to volunteer to do so), unless the employee is a parttime worker who is working no more than 30 hours per week. Violations are a misdemeanor.
All employers also are required to give employees time off to attend 1 regular worship service per week if the employee wishes to do so, unless this would create an undue hardship on the business.
Texas has extensive rules regarding the employment of minors. (Labor Code, 51.003, et seq.). Most are patterned after federal child labor regulations, but Texas has some unique provisions (especially relating to use of minors in door-to-door solicitations). Texas also has a general ban on employment of children under the age of 14, except in agriculture, newspaper delivery and in a business owned by a parent or guardian. Violation is a misdemeanor.
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Employees must be paid at least semi-monthly if non-exempt (exempts must be paid at least monthly) (61.011). Unless company designates other payday, it must issue paychecks on the first and fifteenth of the month (61.012). Failure to pay wages when due may amount to a felony if found to have been an intentional effort to avoid payment (61.019).
No deductions can be made from an employee's paycheck without his consent, unless required by state/federal laws or required by court order (61.018). Agencies and employers which use temporary common laborers may not charge these employees for uniforms, safety equipment or other similar items, nor impose charges for check-cashing or issuance of pay vouchers (61.018).
Companies may not require or coerce an employee into purchasing food, clothing or merchandise from a particular store (52.041).
Where an employee has been discharged, wages must be paid in full no later than 6 days after the date of discharge. Employees who quit must be paid on the next regular payday (61.014).
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Wages of an employee do not appear to be subject to continuing garnishments, except for child support obligations (61.018). Termination of employee for garnishment arising out of single indebtedness is prohibited.
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Texas is very tough in enforcing child support, and authorizes maximum withholding to obtain payment of arrearages. It also allows attachment of monies in IRAs which exceed the deductible amount. In addition, both driver's licenses and certain professional licenses may be suspended for failure to pay child support (Texas Admin.Code, 141.6-7, 601.2, 711.2; Title 25, 313.3, 313.19; Trans. Code, 521.0445).
Parents may be required to provide health insurance for a child (including a child born out of wedlock). Employers and insurers may be required by court order to allow the child to be enrolled in the plan, and must continue to provide coverage for the child as long as the employee remains eligible for dependent coverage.
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Texas has a nice website, which contains information about the rules established by Texas to implement the federal new hire reporting law (PRWORA). To access that site, click here.
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Prohibits discrimination by companies with 15 or more employees on basis of race, color, religion, sex , national origin, age or handicap. Administered by Texas Commission on Human Rights. Commission may sue if it finds "cause" on the complaint and cannot reach a settlement. A complainant may request issuance of a Right to Sue notice at any time after 180 days have elapsed after filing of the charge. Suit must be filed within 60 days after the notice is given. If successful, the complainant may receive up to two years of backpay from the date of filing of suit, along with reinstatement and other equitable relief. Compensatory and punitive damages have the same caps as Title VII. Attorneys fees also are awardable.
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Texas law states: "A mother is entitled to breast-feed her baby in any location in which the mother is authorized to be." Businesses are encouraged (but not required) to establish policies to allow mothers who wish to continue to breast-feed after returning to work to have privacy in order to express milk, as well as facilities for milk storage. Those businesses which adopt those policies are entitled to use the label "Mother-Friendly."
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Employer may not require an employee to undergo AIDS testing, unless absence of AIDS/HIV infection is a bona fide occupation qualification or unless other circumstances make the testing necessary (such as an accident where others have been exposed to bodily fluids). It is also a violation to disclose information to others about these test results, unless the person is within the category of persons to whom such confidential information may be disclosed.
An employer or other person who requires improper testing or who discloses confidential test results is liable for actual damages, civil penalty of not more than $5,000, and court cost including reasonable attorney fees incurred by person bring the action. The conduct also is a misdemeanor, which can be punished by fine or imprisonment. In addition, even where testing can be conducted lawfully, the employer may have an obligation to insure that the employee receives face-to-face counselling if the result is positive. Penalties can include a minimum penalty of $1000 (or actual damages, whichever is higher), plus attorney fees, to anyone injured by the lack of counselling.
The City of Austin has a special ordinance with respect to AIDS-based discrimination. Those employers doing business in Austin should check into this ordinance, as it broadly prohibits employment discrimination against anyone with AIDS and provides penalties of up to $200 per day for violations.
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It is unlawful for an employer to discriminate against an employee or applicant due to information from genetic tests, or due to refusal to submit to a genetic test. In general, genetic information is treated as highly confidential, and an employer who obtains such information may be required to guard against redisclosure to others without the express permission of the employee and/or court order.
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Companies having 15 or more employees who maintains workers' compensation insurance coverage are required to adopt a policy against workplace drug abuse.
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At termination, the employee must be given the option of continuing health insurance coverage under the group plan if covered for at least 3 months under the plan. Rules are basically the same as federal COBRA for group plans (3.51-6). For individual plans sponsored by the employer, the insurance policy allow employees to convert their coverage to their own individual plan without evidence of insurability if conversion is requested within 30 days of termination (3.51-6).
Where dependents of an employee otherwise would lose coverage due to death or retirement of the employee or change in the family relationship, the dependents must be allowed to continue coverage for up to 3 years under the plan. The plan administrator may add a $5 monthly fee to cover the cost of processing payment. (3.51-6).
Unionized employees who receive health insurance under a union contract must be allowed to continue group coverage during any labor dispute, by payment of monthly premiums (3.51-8).
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All employees have the right to refrain from joining a union, and cannot be forced to join a union or pay union dues under any union security clause of a collective bargaining agreement. Dues cannot be withheld without their written consent.
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It is a misdemeanor, punishable by fine of up to $500 and prison of up to 90 days, for a person on a picket line to use foul or abusive language, or to utter threats, in order to try to induce anyone not to cross the picket line. The act also prevents mass picketing which obstructs the entry onto the premises of the company being picketed. In addition, the statute makes it illegal to picket for the purpose of trying to induce employees of a company to breach an existing contract with their employer. A companion act (Sec. 101.210-205) prohibits secondary boycotts; makes it a misdemeanor to engage in such picketing; and also allows a civil suit for damages arising from such picketing.
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It is unlawful to blacklist an employee in order to prevent the employee from obtaining gainful employment, and to conspire with others to prevent an employee from obtaining employment. Violations are punishable by fine of up to $250 and prison term of up to 90 days. However, companies are permitted to provide a truthful written statement about the reasons for termination, and cannot be sued for making a truthful report of problems with the employee.
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When an employer gives job references on a former employee, it must tell the employee within 10 days what was said (and furnish a copy of the response, if written). The statute also requires that the company provide the employee with a written notice which states all positions held, dates held, and whether performance was satisfactory in such position. However, the Texas Attorney General has advised that this requirement violates the Texas Constitution and is not enforceable. In addition, the statute requires any employer who receives a bad reference on an applicant to inform the applicant of the contents of the bad reference (and provide a copy if written).
This statute also prohibits discrimination against any individual because of peaceful participation in a lawful strike. Violation of the statute is a misdemeanor. If a foreign corporation violates the statute, it may forfeit its license to operate in Texas and be barred from doing further business in the state of Texas (Sec. 5198).
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An employer cannot penalize or discharge an employee because the employee complied with a subpoena to appear in court or has served as a juror. Once released from the subpoena or from jury service, the employee is entitled to be reinstated to his former job (unless change of circumstances would make this impossible, such as where the plant closed or the employee would have been laid off in the interim). Employee who is wrongfully discharged may receive up to 6 months of backpay, plus attorney fees.
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It is unlawful to discriminate against an employee who participates in WC proceedings (e.g., who has filed a WC claim, or hired a lawyer to represent him in the claim, or who appears as a witness in such a claim). This statute also has been held to apply to claims brought against companies which opt-out of the Texas WC laws [Texas has an unusual procedure in which a company can become a "non-subscriber" to the WC system, and deal with any WC claims through the court system). See Hodge v. BSB Investments, Inc., 783 S.W.2d 310 (Tex.Ct.App. 1990). However, an applicant who is denied employment due to prior WC claims does not have a cause of action under this Act, according to the Court of Appeals. Stoker v. Furr's, Inc., 813 S.W.2d 719 (Tex.Ct.App. 1991). Nonetheless, such a claim might be successful under the blacklisting or service letter statutes noted above (and a claim also might be possible under the ADA), depending on the circumstances.
It is not a violation of this Act to apply a neutral attendance policy which ends seniority after an extended absence (as is common in many collective bargaining agreements). See Swearingen v. Owens Corning Fiberglass, 968 F.2d 559 (5th Cir. 1992) (holding that it was lawful to terminate employee after absence of 2 years, pursuant to uniform attendance rule). Successful claimants may recover backpay, reinstatement and "reasonable damages." Punitive damages only may be awarded for egregious misconduct.
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Employees cannot be penalized for taking off adequate time needed to vote. Employee is presumed to have adequate time if the employee has at least 2 hours before or after work while polls were open (Election Code, 276.004). Offense is a misdemeanor.
Unlawful to threaten employee in order to find out how employee voted, or to retaliate against employee for vote (Election Code, Sec. 276.001). Offense is a felony. Also is unlawful to deny unpaid leave or to otherwise penalize an employee who wishes to participate in a precinct convention for which he is eligible.
Unlawful to retaliate against employee of health care institution for reporting possible abuse or neglect of a resident, either internally or to outside agencies. Such employers must provide a written notice to employees of their rights under this statute (as well as the time periods for bringing a claim), and get a signed acknowledgement of this notice. Failure to do so extends the time for bringing a claim.
Covenants not to compete are generally enforceable if reasonable as to time, geographical area and scope of the activities which are restrained, and entered into as a part of an employment agreement. However, any restraint must be no greater than the minimum required to protect the business interests of the company. Courts have the power to reform covenants which are overbroad. If modified significantly, and if the court determines that the company was heavy-handed in seeking unreasonable restraints, the court has the specific statutory authority to tax the company with the costs and fees of the employee in obtaining reformation (Business/Commerce Code, 15.50-.52). Agreements which are signed after the employee is hired may be viewed as not part of an employment agreement, especially if the employee is employed at will and has no particular access to confidential data. See Light v. Centel Cellular of Texas, Inc., 883 S.W.2d 642 (Tex.S.Ct. 1994).
It is unlawful for a health care provider to discriminate against an employee who refuses to perform or participate in abortions (Tex. Civil Code, Sec. 4512.7).
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Employers are required to maintain MSDSs on all hazardous chemicals stored in the workplace, and are required to make these available to employees. A notice pertaining to these rights is also required to be posted (Health Safety Code, 502.013). Employers also must post a payday poster required by the Texas Employment Commission, as well as a non-discrimination poster from the Texas Commission on Human Rights. In addition, where employees operate machinery around electrical lines, Texas requires posting of a specific notice to these employees which must be hung on the arm or boom of the crane (Health/Safety Code, 752.006). Failure to post the electrical warning can result in a fine of up to $1000 and a prison term of up to 1 year.
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Where employees are employed on an indefinite basis, Texas follows the general rule that employment is "at will," and may be terminated by either party at any time, with or without notice.(Claus v. Gyorkey, 674 F.2d 427) A well-worded disclaimer in an employee handbook may help to preserve an employer's right to discharge at will. See Conaway v. Control Data Corp., 955 F.2d 358, 7 IER Cases 408 (CA 5 1992), and Crum v. American Airlines Inc., 946 F.2d 423, 7 IER Cases 415 (CA 5 1991).
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Texas follows the general rules on contract interpretation, which allow an implied contract to be found from a course of action of the parties. Thus, where an employer had adopted a nepotism policy, but then did not enforce it for some 17 years (thereby allowing a woman to work in the same facility as her brother for almost two decades, with the full knowledge of management), the company was held to be bound by the waiver. Goodyear Tire and Rubber Co. v. Portilla, 879 S.W.2d 47, 9 IER Cases 1459 (Texas SupCt 1994).
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Texas allows "whistleblower" claims for wrongful discharge in violation of public policy where the claim involves violations of state and federal laws which carry a criminal penalty. The employee has a heavy burden of showing that the discharge did not occur for any reason other than the protected conduct.
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Texas allows normal common law claims for defamation, assault, and other types of personal injuries. Damages can include lost future earning capacity where the employee has suffered severe emotional trauma from the tortious acts of the employer. For example, in Borden, Inc. v. Rios, 850 S.W.2d 831 (Tex.Ct.App. 1993), an employer was hit with a verdict for $878K in actual damages (including $691K in lost earning capacity), as well as $3 Million in punitive damages, where it was found to have falsely accused an employee of theft without conducting an adequate investigation which apparently would have revealed that someone else had committed the theft.
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COPYRIGHT 2004 ALL RIGHTS RESERVED |
These materials include summaries of various laws and count rulings. Please be aware that many of these laws are quite lengthy, and the regulations which interpret them may be even longer. As with all summaries, there may be provisions which have been omitted from these materials which could be vitally important in certain factual contexts. Furthermore, these pages are not updated daily, so changes may have occurred which have not yet been included here. In addition, there may be federal laws, or the laws of other states, which govern the particular problem and which may be significantly different, so the answer to a particular legal problem may vary depending on a number of factors. Thus, these summaries should be used ONLY for general management education about employment laws or as preliminary tools to trigger further research, and not as a substitute for consultation with experienced legal counsel (who typically will review the full text of federal and applicable state law, the full text of all regulations, and the applicable federal and state case law before attempting to advise a client about the law which applies to the particular factual scenario presented).
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