Thursday, April 23, 2020

Family Medical Leave Act amidst COVID 19

Now’s the time to find out if you are covered or your employer is subject to the Family and Medical Leave Act (FMLA).   

The Family and Medical Leave Act (FMLA) is a federal law that lets covered employees take extended time away from work, to handle certain family or medical needs.  Many states have similar laws that may provide additional coverage above and beyond that outlined in the FMLA. Following is a brief discussion of employees' rights under the FMLA.

As the COVID-19 virus spreads, more families may need to stay home from work and care for children, partners, or parents. In light of the pandemic, there are two new acts put in place to help sick people, or those caring for sick family members.

The new acts and how they might help you take paid leave are outlined below.

Emergency Family and Medical Leave Expansion Act (EFMLEA)

This act is an expansion to the FFCRA. It provides 12 weeks off for people caring for children whose school or daycare has closed due to COVID-19. Ten of the 12 weeks are paid. You would not get your full rate (typically, you would receive 2/3 pay), and the amount you can receive is capped by the law. But you would get much more relief than you usually would under the FMLA, which is unpaid.

This leave is not available to everyone. For example, if you have completely used up your FMLA this year, you will not be eligible for EFMLEA. 

Families First Coronavirus Response Act (FFCRA)

As of April 1, 2020, the "main" new act was put into action. This temporary act will expire on December 31, 2020, when laws will go back to basic FMLA rules.

The Families First Coronavirus Response Act provides benefits such as:
  • Up to 80 hours of paid sick leave for government quarantine or self-quarantine (recommended by a health professional) under the Emergency Paid Sick Leave Act (read more below)
  • Up to 12 weeks of expanded family and medical leave, including 10 paid weeks, for COVID-19 under The Emergency Family and Medical Leave Expansion Act (read more below)
  • Reimbursement for companies with fewer than 500 workers for their employees' paid time off
  • Tax credits for companies who let their employees take COVID-19-related sick leave
  • Allows for up to ten weeks of partial pay to care for your kids. Some companies are also expanding their time off or required hours to make room for childcare.
Emergency Paid Sick Leave Act (EPSLA)

This act is a part of the FFCRA. It enables eligible employees to take up to two weeks of paid sick time. This does not replace your current sick time at your company, but is in addition to any time you already have.

You will receive full pay for this extra sick time. But, the amount you can be paid is capped. This extra time only applies to employees who:
  • Cannot work due to quarantine or isolation orders
  • Are self-quarantining
  • Are showing symptoms
For example, this extra sick time would not apply if you suddenly got sick with influenza A or strep throat.

Coronavirus Aid, Relief, and Economic Security Act (CARES)

This act clarifies the payment limits you can receive for COVID-19-related sick leave. It also gives longer family or medical leave to anyone:
  • Laid off or fired after March 1, 2020
  • Going to be re-hired by the same company before December 31, 2020

If you believe your rights may have been violated in regards to the Family and Medical Leave Act, Call BIG DAN immediately.

Thursday, March 26, 2020

A Message to our Clients Amid the COVID-19 Pandemic

In response to COVID-19 Pandemic, there have been numerous Orders from various governmental entities that affect the practice of law here in Hidalgo County and throughout the State of Texas.
To comply with these Orders, ensure the safety of our clients and employees, and to do our part to help flattening the curve, we are implementing the following modifications to our practice:

1.     Only essential hearings will take place for now until further notice.  If you have a pending case or a hearing coming up, you must call the office to find out if your hearing is essential.  All Jury Trials have been suspended for Civil and Criminal cases until further notice.

2.    For clients that in are Custody, we will continue to do all that we can to secure your release. For example, we are filing Motions to Reduce Bond, Writs of Habeas Corpus, and requesting PR bonds.  We ask that family members call the office for further instructions and information.

3.  Travel to and from our office will continue to be allowed, but only if absolutely necessary.  Unfortunately, we will not be accepting any walk-ins.  Current clients must call in and request an appointment.  In the event that an in-person meeting is necessary, we will request that both the employee and client wear necessary protective gear such as gloves and/or mask. 

4.   Attorney-Client meetings will be held by telephone and/or videoconferencing using Facebook WhatsApp, or ZOOM.

5.      Please call into the office if you have a pending case with us, to see where we stand. 

6.   Any hearings that will be held during this time will be either in person, videoconferencing, or Telephonic.  If you do not have internet at home or the capability to install software for videoconferencing, you might have the option to attend the hearing telephonically.  Please call our office several days before your hearing in order to coordinate with the Court on how to best conduct your hearing. 

7.    Any documents that need to be signed can be executed electronically, and sent through email or fax.  If you do not have the ability to electronically sign documents, we will make an exception for you to come in person, taking all necessary precautions.

8.  We remain reachable by phone, video, email, text, WhatsApp, ZOOM and CLIO.  We will continue to have full access to our systems, and although certain face-to-face meetings need to be curtailed, please know that with our systems in place we stand ready to assist you with any challenges you are facing or questions you have.

9.  CLIO is our practice management system.  All clients have remote access to their files using CLIO.  Clio Connect is a secure portal where our office is able to share Documents, Calendar Events, Tasks, Bills, and Secure Messages.  Clio Connect is free for clients. If you do not have access yet, please call the office and we will send you a link to log on. 

10. WE ARE STILL OPEN FOR BUSINESS. OUR HOURS ARE THE SAME.  We are considered a critical infrastructure industry by the U.S. Department of Homeland Security.

1.   We are instructing all staff to practice good social distancing from each other and from clients, at least 6 feet apart.  Absolutely no physical contact.  Allow only one client, one person at a time to be on the premises.  Providing clients with the necessary protective equipment such as mask and gloves.  All meetings will take place in conference room, where only two people will be allowed at a time.  Ensure proper disposal of equipment and disinfecting areas of contact.

2.    All personnel have individual offices and shall remain in place until the need arises for leaving to restroom or leaving for lunch.

3.   We are staggering our shifts in order to avoid the need for coming in close contact with each other. 

4.  Employees who have symptoms (i.e., fever, cough, or shortness of breath) should notify their supervisor and stay home.

5.   Sick employees should follow CDC-recommended steps. Employees should not return to work until the criteria to discontinue home isolation are met, in consultation with healthcare providers and state and local health departments.

6.   Employees who are well but who have a sick family member at home with COVID-19 should notify their supervisor and follow CDC recommended precautions.

7.   Our employees are equipped with Personal Protection Equipment such as gloves and masks and will be worn at all times when in close contact with others.

8.  We are promoting frequent and thorough hand washing by providing workers, customers, and worksite visitors with a place to wash their hands. Soap and running water are immediately available, as well as alcohol-based hand rubs containing at least 60% alcohol.

9.    Most importantly everyone is required maintain regular housekeeping practices, including routine cleaning and disinfecting of surfaces, equipment, and other elements of the work environment. When choosing cleaning chemicals, employers should consult information on Environmental Protection Agency (EPA)-approved disinfectant labels with claims against emerging viral pathogens. Products with EPA-approved emerging viral pathogens claims are expected to be effective against SARS-CoV-2 based on data for harder to kill viruses. Follow the manufacturer’s instructions for use of all cleaning and disinfection products (e.g., concentration, application method and contact time, PPE).


Fortunately, our firm has a plan in place to ensure business continuity so that we are operational and fully available to handle client matters as seamlessly as possible. 

We realize that each client, business, and industry will feel the effect in different ways, and our attorneys are prepared to help you navigate this uncharted territory, or to just lend an ear. 

Our thoughts are with everyone impacted by this pandemic, and we wish for everyone to remain healthy and safe as we work through these challenging times. We are all in this together, and together we will get through it.

To help our employees and clients navigate through these uncharted waters, we encourage you to read, "Guidance on Preparing Workplaces for COVID-19"

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."