Category Archives: Labor Laws

What Does it Mean That Texas is an At-Will Employment State?

You may have read it in a job application or had a potential employer tell you that the job is “at-will”. Or you may have had an employer threaten your job and tell you that it is “at-will” or that Texas is a “right to work state”. While these terms may be common in the employment world, it is important to understand what they actually mean. In Texas, an employee may generally be fired for any reason (a good reason, a bad reason, a wrong reason, or no reason). Likewise, an employee may generally choose to quit his or her employment for any reason. However, there are certain limitations to the principle of at-will employment.

First, State and Federal law prohibit discrimination and retaliation in employment

While it is true that Texas is an at-will employment state, employers cannot terminate an employee based on his/her gender, race, age (over the age of 40), national origin, color, or religion. Chapter 21 of the Texas Labor Code and Title VII of the Civil Rights Act of 1964 both prohibit discrimination in employment; which includes terminating an employee for a discriminatory reason. Both of these laws also prohibit employers from terminating an employee in retaliation for the employee’s complaint of discriminatory treatment. That means that an employee cannot be fired because he/she complains to the company about discrimination towards himself/herself or towards another employee. Employers also cannot fire an employee because of his/her participation in an investigation of another employee’s charge of discrimination with the Texas Workforce Commission or Equal Employment Opportunity Commission.

An employment contract may give an employee certain rights to the job

Most employment agreements will specifically state that the job you are accepting is at-will and may be terminated by either party at any time. However, occasionally an employment agreement will provide for the employee to remain employed for a specific period of time (1 year or more), and it will limit the ability of the employee and the employer to terminate that employment relationship early. Sometimes, these agreements will state that the employee may be terminated only for “good cause”, which could include things like a violation of company policy or prolonged performance issues. Other times, the agreement will merely state that a certain amount of notice (30-60-90 days) is required for either party to terminate the relationship. Ultimately, you are entitled to certain rights if you have signed an employment agreement that limits your employer’s ability to fire you. This may include your ability to obtain a severance payment if you are terminated from your job (a) without good cause or (b) without proper notice.

Always consult with an employment lawyer

Just because Texas is an at-will employment state, it does not mean that employees have zero rights.  If you are an employee in Texas and believe that you have either been discriminated/retaliated against or fired in violation of your employment agreement, you should always consult with an employment lawyer. An attorney can review the facts to determine if you have a valid claim against your employer and advise you of your legal rights.  

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Do Employees Have the Right to an Attorney in a Meeting at Work?

When an employee is called into a meeting with his/her boss or Human Resources, panic will sometimes set in.  There may have been certain events that led up to this meeting which indicate to the employee that the meeting is not likely to go well.  It could be that the employee

  • was already accused of some sort of misconduct or,
  • the employee has been experiencing harassing and discriminatory treatment leading up to the meeting. 

Either way, the employee may be wondering what his/her rights are going into this meeting, and whether or not an employee has a right to an attorney during a work meeting.    

Generally speaking, an employee cannot bring his/her lawyer to a meeting at work

There is no absolute right to counsel that affords employees the right to have an attorney involved in employment matters.  So long as you are an employee in Texas, your employer can require you to attend meetings with whomever they choose.  This means that while an employer can choose to allow you to bring a lawyer to a meeting;

  • you will generally have no right to bring one. 
  • you do not get to dictate to your employer that you will be bringing your attorney to the meeting  
  • you do not get to tell your employer that you will not attend the meeting unless you are allowed to bring your attorney

If you do refuse to attend the meeting, then your employer can (and quite possibly will) discipline you, and it may make it more difficult to pursue a legitimate legal claim.

So what do I do if I am called into a meeting at work?

If you are called into a meeting by your supervisor or HR, then you should most likely attend the meeting.  You can request that a third party be present in the meeting to witness everything.  This third party could be a co-worker, someone from HR, or someone from management.  However, there is nothing that requires an employer to provide a third-party witness in a meeting. 

In Texas, individuals have the legal right to record conversations that they are a party to.  That means that you cannot be charged criminally for recording a conversation that you are a party to.  However, employers may still have policies that prohibit employees from recording any conversations at work.  It is important to first refer to your employers policies and procedures (e.g. employee handbook) to see if there is any prohibition of that sort.  If not, then you may want to consider recording the meeting to document everything that is said.

If you are called into a meeting by your employer and you believe that they are preparing to terminate your employment or otherwise discriminate against you in some fashion, you may want to first reach out to an employment attorney to discuss your situation.  While you generally will have no right to bring an attorney to this meeting, an attorney may be able to provide you with certain advice to better prepare you for the meeting.  Additionally, if given enough notice, an attorney may be able to reach out to your employer’s legal counsel prior to the meeting date to present them with certain legal claims.

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Breaks and Texas Labor Laws

Under Texas Labor Laws that address break periods throughout a workday, employers have no legal obligation to provide their employees with coffee, rest, or lunch breaks. Many employers do offer this benefit, but since it is their choice and not a legal requirement, they can eliminate this perk at any time.

 

All employees in Texas are required to be paid for their work. However, under Texas Labor Laws on rest and lunch breaks, employees have no legal right to demand or require such breaks. If an employer does provide breaks, all employees are entitled to be paid for short breaks as part of their daily work but not meal breaks unless such breaks qualify as a working lunch.

If your pay is docked for allowed short breaks or working lunches, you can take measures to recoup your docked pay. To learn more about your rights and possible claim under Texas Labor Laws regarding breaks, consult with an experienced employment attorney in your area or read our full article Breaks at Work in Texas.

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Vacation and Sick Leave Policies – What Leave Does my Employer Have to Give me?

While many employers choose to offer vacation and/or sick leave to their employees, there is no general requirement that an employer offer vacation or sick leave to its employees under Texas or federal law.  However, under certain circumstances, an employer may be required by law to provide an employee with leave due to the employee’s own medical condition or to care for a family member who is suffering from a medical condition.  There are also certain legal obligations for employers who do have written vacation and sick leave policies.

Leave Requirements under the Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA)

The ADA requires employers to provide a “reasonable accommodation” to employees with disabilities.  While there are any number of modifications that can be made to a particular employee’s job duties to accommodate him/her, leave from work may also be considered a reasonable accommodation.  For example, if an employee is suffering from a disability which requires surgery, the employer may be required to provide that employee with a certain amount of leave to undergo the surgery and recover from the surgery.  However, the employer is only required to do so as long as granting the leave does not cause an “undue hardship” for the employer.  This means that an employer may not be required to grant the leave if it would cause significant disruption/difficulty or expense to the employer.

Under the FMLA, an eligible employee is entitled to up to 12 weeks of unpaid leave when that employee suffers from a serious health condition, to care for a family member (spouse, child, or parent) who suffers from a serious health condition, or following the birth of a child.  An employee who takes leave under the FMLA cannot be fired or otherwise retaliated against for taking or requesting FMLA leave, and he/she must be restored to his/her original job (or equivalent) upon return from FMLA leave.

While the ADA applies to all employers with 15 or more employees, the FMLA is only applicable for employers with 50 or more employees within a 75 mile radius.  Additionally, to be eligible for leave under the FMLA, the employee must have worked at least 1,250 hours over the course of a 12 month period preceding the leave.

What Happens to My Accrued Leave when I am Terminated?

Under the Texas Payday Law, accrued leave must be paid out to an employee only when the payout has been promised in a written policy or agreement with the employer.  How and when this payout is made is subject to the language of the policy or agreement.  This means that depending on the wording, the payout of accrued but unused leave may only be paid out when an employee is

  •  terminated without cause
  • gives the employer proper advance notice of resignation.

If there is no written policy, there is no legal requirement for the employer to payout an employee’s leave balance upon employment separation.                               

If you have recently been terminated, laid off, or resigned, and your employer is refusing to payout your accrued leave, it is important to consult with an employment attorney in your area. You may have the right to pursue a breach of contract claim or a wage claim against your employer.

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When is Overtime Pay Required?

The Fair Labor Standards Act (FLSA) governs when an employer is required to pay overtime to an employee.  The FLSA stipulates that unless an employee is exempt from the FLSA, an employer must pay the employee overtime for all hours worked in excess of 40 hours in a given workweek.  Overtime pay must equal at least one and one-half times the employee’s regular rate of pay.  Knowing if, and when, you may be owed overtime pay can be quite complicated, but the following provides a general overview of the primary issues concerning overtime pay.

Exempt vs Non-Exempt

One of the first steps in determining if you are eligible for overtime pay is to figure out if you are exempted from the FLSA.  If you are an exempt employee, your employer is not required to pay you overtime pay for hours worked in excess of 40 hours per week.  In this brief post, it would be impossible to address every possible job scenario as exempt or non-exempt.  However, there are some general guidelines to remember when making the determination.  To be exempt, an employee must meet the following criteria:

  1. Be paid at least $455 per week ($23,600 per year)
  2. Be paid on a salary basis
  3. Perform exempt job duties.

The majority of the exempt job duties fall into three categories; executive. professional and administrative.

  • The executive exemption includes jobs in which the employee’s primary duty consists of managing the entity or a department or subdivision of the entity.  The employee must also direct the work of two or more full time employees (or full time equivalent employees), and have authority in hiring, firing, promoting, or other terms and conditions of employment.
  • The professional exemption (also known as the learned professional exemption) includes jobs in which the employee’s primary duty consists of the performance of work that requires advanced knowledge or training in a field of science or learning.  The employee must have also gone through specialized instruction/training to acquire that advanced knowledge.
  • The administrative exemption includes jobs in which the employee’s primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers.  Additionally, the employee must exercise discretion and independent judgment with respect to matters of significance in order to be characterized as an exempt employee.

Calculating Overtime

For non-exempt employees, overtime is calculated by multiplying the employee’s regular rate of pay by one and one half and multiplying that number by the total number of hours worked over 40 hours in a given workweek.

An employee’s regular rate of pay is generally based on his/her hourly rate of pay.  So if the employee earns $10.00 per hour, his/her overtime pay would be $15.00 per hour.

For a non-exempt employee who is paid a salary, the employee’s overtime rate can fluctuate from week to week depending on the number of hours worked.  A salaried employee’s overtime pay is calculated based on the salary as well as the number of hours that the salary is intended to compensate the employee for.  For a salaried employee who is expected to regularly work 50 hours per week, overtime is calculated by first dividing the employee’s weekly pay by the total number of hours worked.  So if the employee earns $1,000 per week and worked 50 hours in a particular week, the employee’s regular rate of pay would equal $20.00 per hour that week.  For that week, the employee would be owed $10.00 for each hour of overtime worked ($10.00 per hour x 10 hours of overtime = $100.00).

Non-Exempt Employee’s Right to Overtime Pay

If you are a non-exempt employee (or if you are unsure if you are exempt or non-exempt), you have certain legal rights that protect you when your employer fails to pay you overtime pay.  A claim for unpaid overtime may be filed with the United States Department of Labor or the Texas Workforce Commission.  However, speaking with an employment attorney knowledgeable in the overtime laws is an important first step in determining when overtime pay is required.

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Breaks At Work: The Facts about Texas Labor Laws and Employee Breaks

Under Texas Labor Laws that address break periods throughout a workday, employers have no legal obligation to provide their employees with coffee, rest, or lunch breaks. Many employers do offer this benefit, but since it is their choice and not a legal requirement, they can eliminate this perk at any time.

Federal and Texas Laws:

The United States Department of Labor’s policy regarding breaks and meal periods does not require employers to provide lunch or coffee breaks and Texas Workforce Commission laws are the same. Under these laws, if an employer offers short breaks of between 5 and 20 minutes, they are considered part of an employee’s workday and must be paid and included when determining overtime. Bona fide meal periods are different from the short breaks and usually last at least 30 minutes. These meal breaks are not considered work time and therefore are not paid or considered when calculating overtime. It is important for employees to remember that the rules on what break periods are or are not compensated is only relevant if the employer chooses to provide these breaks.

Additional Breaks:

Although Texas employers are not required to provide breaks under current Labor Laws there are some exceptions to these rules including:

  • Nursing Women: Federal Labor Laws require employed women be allowed a reasonable time to breast feed or express milk for the first year of their child’s life. She does not have the right to be compensated for this break unless she uses her allowed “short breaks” to perform this task, if this option is provided through her employment.
  • Rest Break Ordinance: In 2010, Austin, Texas enacted an ordinance that states, “All employees performing construction activities at a construction site are entitled to a rest break of no less than ten (10) minutes for every four (4) hours worked. No employee may be required to work more than four hours without a rest break.” (Ordinance No. 20100729-047).

In addition, an employer cannot discriminate by giving one employee or group of employees breaks but not others.

Working Lunch:

Federal and Texas labor laws require that employees be compensated for the time they work. While employers are not required to pay employees for meal breaks, they must do so if an employee works through this break. Federal and Texas Labor Law requires that an employee must be relieved of all duties during the meal break for it to be unpaid. Employees who are not relieved of all active or inactive duties while they are on a meal break must be compensated for their time as a working lunch. Work activities can include but are not limited to:

  • Answering telephones
  • Greeting clients, customers, or visitors
  • Reading or writing work-related documents or reports
  • Meetings

If an employee engages in these or other work related activities, he or she must be paid for this time.

Employee Rights

All employees in Texas are required to be paid for their work. However, under Texas Labor Laws on rest and lunch breaks, employees have no legal right to demand or require such breaks. If an employer does provide breaks, all employees are entitled to be paid for short breaks as part of their daily work but not meal breaks unless such breaks qualify as a working lunch.

If your pay is docked for allowed short breaks or working lunches, you can take measures to recoup your docked pay. To learn more about your rights and possible claim under Texas Labor Laws regarding breaks, consult with an experienced employment attorney in your area.

 

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