Friday, June 14, 2019

Common Violations in Employment Law # 3: Workers Compensation Retaliation

Texas Law prohibits discrimination against employees who make or pursue workers’ compensation claims.  Presently located at Chapter 451 of the Labor Code, the anti-retaliation provision prohibits an employer from discharging or otherwise discriminating against an employee because that employee has filed a workers’ compensation claim in good faith or otherwise acted in furtherance of his or her rights under the Texas Workers’ Compensation Act. 

The purpose of the Texas Workers’ Compensation Act is to protect an employee’s entitlement to workers’ compensation benefits as well as protect the employee from termination because of an on the job injury or because the employee has taken steps to collect benefits. 

Chapter 451 of the Texas Labor Code prohibits employers from discriminating against an employee because the employee:
•      Filed a workers’ compensation claim; 
•      Hired a lawyer to represent the employee in a claim;
•      Instituted or caused to be instituted in good faith a proceeding under the Texas Workers’                       Compensation Act; or
•      Testified or is about to testify in a proceeding under the Act.

The most common form of Chapter 451 claim is for discriminatory or “retaliatory” discharge, but other forms of discrimination are also actionable. Adverse action short of termination may also be impermissible under Chapter 451.  

It is not necessary to have actually filed a workers compensation claim to invoke the statutory protection under Chapter 451, simply having taken steps toward instituting a claim.  For example, informing your employer of an on-the-job injury sufficiently institutes a claim. 

A wrongful termination claim like this one under Chapter 451 must be filed within two years after the cause of action accrues.  A cause of action accrues when the worker receives notice of termination or when worker should have known of the termination. 

If you believe you may have a workers compensation retaliation case, Call BIG DAN immediately for a FREE consultation.  

Sunday, September 16, 2018

When do I get my Paycheck after leaving a job?

Whether you are fired, laid off, or voluntarily quit your job, state and federal laws govern how promptly your former employer must issue your last paycheck. While federal law establishes a minimum requirement, state laws differ on how soon you must be paid after leaving your job. Additionally, many state laws carve out separate final paycheck deadlines for employees who quit, as opposed to being fired or laid off. Employers who break these rules often do so out of ignorance, but they can face stiff penalties for noncompliance.

The following article serves as a primer on when to expect your final paycheck after leaving or being terminated from your job, and what to do if your former employer disregards the law.

State and Federal Last Paycheck Laws in General

Most states have laws mandating how soon a departing employee must receive his or her final wages (see Final Paycheck Laws by State for details). But even in those states that lack such laws, federal law requires employers to issue a departing employee’s final paycheck on or before the regular payday for the last pay period.

Some states have laws requiring payment to departing employees on the next scheduled payday, which is in alignment with federal laws, while several states mandate immediate pay upon discharge or on the next business day.

Texas Payday Law

If you have been fired or voluntarily quit your job, your former employer may have to pay you sooner than the next regular pay period.


 (a) An employer shall pay in full an employee who is discharged from employment not later than the sixth day after the date the employee is discharged.

(b) An employer shall pay in full an employee who leaves employment other than by discharge not later than the next regularly scheduled payday.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Still Waiting? How to File a Complaint

If you have not been paid on your regular payday after leaving a job, and efforts to remedy the situation with your former employer have failed, contact your local Texas Workforce Commission Office or Department of Labor (DOL), Wage and Hour Division office to file a complaint. But before you do that ....

Get a Free Evaluation of Your Employment Law Concerns

Whether you’ve moved on to another employer or were fired from your last job, you are entitled to your last paycheck in accordance with state law. If you’re still waiting for your last paycheck after the statutory deadline, you may want to explore your legal options. Have an employment attorney evaluate your potential claim for free. Call The Vargas Law Office.  

Monday, July 9, 2018

Common Violations in Employment Law #2: Employee or Independent Contractor?

Owning and operating a small business can become overwhelming when it comes to withholding and paying payroll taxes to the IRS.  That is, an employer must withhold part of the employees pay, in form of income taxes, social security, and medicare taxes.  It also has to pay unemployment taxes to the state.  For this reason many companies decide to classify a worker as an Independent Contractor rater than an employee.  But doing so incorrectly with no reasonable basis may make the employer liable for those taxes and penalties.  It is therefore recommended that you seek advise of counsel prior to classifying your worker as an independent contractor. Whether a worker is an independent contractor or employee depends on the facts in each situation.  The general rule is that an individual is an independent contractor if the payer has the right to control or direct only the result of the work, not what will be done or how it will be done.  If you own a small business and employ someone else to perform work, consider seeking advice with THE VARGAS LAW OFFICE, for a consultation on the costs and benefits of classifying workers as Employee or Independent Contractor.

Saturday, May 27, 2017

Common Violations in Employment Law #1: Overtime

As good jobs have become more and more scarce due to manufacturing outsourcing and international trade deficits, employers are beginning to realize the benefits of a surplus in the labor force.  Eventually if we have more people looking for jobs than what is available, we have a situation in which the wages of the laborer will drop due to increased demand for work. There are however, certain protections in favor of a minimum wage with the Federal Fair Labor Standards Act, which establishes a minimum wage at $7.25 per hour, with few exceptions.  Along with minimum wage, this federal law also establishes the requirement that employees be paid overtime wages, that is time and one-half, for every hour worked passed  a 40 hour work week.  A common Misconception among employers is that they can simply bypass this overtime pay requirement by classifying their employee as Salary based pay.  In this situation employers simply pay their employees a fixed amount of pay every week regardless of amount of hours worked.   The first criteria that must be met in order to qualify for overtime exemption is that the employee must be paid a minimum of $455 per week. Depending on their job description and actual duties performed, there are many other criteria that must be met.  There are also times when hours are transferred from one work week to the next to avoid going over the 40 hours in one week.  This also is not allowed.  Regardless of what you employer has said or made you agree to, overtime pay may not be waived.  If you worked it, you earned it. If you have any questions or concerns that your rights may have been violated, feel free to call The Vargas Law Office for a free consultation.

Right of the People

In the midst of all the violence regarding police brutality and retaliations by citizens, it becomes clear that a change is well over due.  Gun control is a hot topic as a solution to the problem, but that addresses only one side of the issue.  It only prohibits the people, in thier right to bear arms and defend themselves, even from their own government, from retailiating with firearms.  The solution must be a balanced one.  It seems to me that the police force, the very same goverment institution that was created to serve and protect the people, have become too militarized and have been given too much power to perform the service they were intended for.  Tighter gun restrictions combined with a non lethal police force should be the aim of your representatives going into the next legislative session.  Lastly, I'll leave you with an excert from the Declaration of Independence that seems to touch on this issue:  "We hold these truths to be self evident that all Men[sic] are created equal, that they are endowed by their creator with certain unalienable rights, that amoung these are Life, Liberty, and the Pursuit of Happiness-that to secure these rights, Governments are instituted amoung Men, deriving their just powers by the Consent of the governed, that whenever any form of government becomes destructive of these Ends, it is the Right of the People to alter or abolish it."

Friday, January 29, 2016

Texas Open Carry Law

This article intends to clarify some common misconceptions regarding the new Texas gun law.  Open carry has always applied to rifles.  In Texas, it was completely legal to open carry a rifle without having a license.  It was illegal,however, to carry a handgun unless you had a Concealed Handgun License (CHL).  Even then it had to be concealed.  The major change is that now you can open carry a handgun too, with a proper Handgun License.  Now this doesn't mean that you can go brandishing your handgun in public all willy nilly, like some posts that have recently been circulating on Facebook.  Your handgun must be carried in a shoulder or belt holster.  If not, you can still be charged with Unlawful Carrying, even with a license.  If you would like a full consultation of your legal rights and duties under the new Texas Open Carry laws, drop by the office for a paid consultation.

Monday, March 2, 2015

Drug Testing for Welfare Benefits

Drug Testing for Welfare Benefits is Back?

Despite several prior unsuccessful attempts to pass legislation in this regard, the GOP are putting this issue back on the table.  The logic behind this bill is that we should not have taxpayers pay for peoples drug habits.  While no one can argue with this premise, their logic is flawed.  It does not necessarily follow that because someone is testing positive, that they are misusing the state benefits for thier children.  And even if they are positive, what happens to thier children.  Is the state going to designate a third party to purchase food and other items for the children of otherwise eligible parents.  I am not against drug testing, I just dont think its a fix.  Instead of drug testing, there should be more restrictions of the method of payment or the items that can be purchased.  Sodas, chips, and ice cream are items that are currently available for purchase.  Yet you wont see these items restricted due to the deep pockets of the lobbyists for the companies producing these products.  This shows legislators true intentions of punishing a social economic class rather than trying to fix the problems with the program.