Overtime Regulations,Texas Employment Lawyer

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Overtime Regulations

The Department of Labor’s final rule updating the overtime regulations was announced on May 18, 2016.  It will automatically extend overtime pay protections to millions of  workers within the first year of implementation.  The effective date of the final rule was December 1, 2016.

However, on Nov. 22 U.S. Judge Amos Mazzant in the Eastern District of Texas issued a preliminary-injunction blocking the rule. A notice of appeal has been filed with the Fifth U.S. Circuit Court of Appeals by Secretary of Labor Thomas Peretz and representatives of the U.S. Department of Labor aiming to lift the temporary injunction against overtime changes.

Key Provisions of the Final Rule

The Final Rule focuses primarily on updating the salary and compensation levels needed for Executive, Administrative and Professional workers to be exempt. Specifically, the Final Rule:

  1. Sets the standard salary level at the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region, currently the South ($913 per week; $47,476 annually for a full-year worker);
  2. Sets the total annual compensation requirement for highly compensated employees (HCE) subject to a minimal duties test to the annual equivalent of the 90th percentile of full-time salaried workers nationally ($134,004); and
  3. Establishes a mechanism for automatically updating the salary and compensation levels every three years to maintain the levels at the above percentiles and to ensure that they continue to provide useful and effective tests for exemption.

Additionally, the Final Rule amends the salary basis test to allow employers to use nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the new standard salary level.

The Wage and Hour Division of the Department of Labor has published a list of Questions and Answers from the General Information Overtime Webinars to help in understanding the new regulations.

Board Certified Labor and Employment Lawyer

East Texas Attorney, Michelle Jones is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization and has over 27 years experience helping employers.  If you are an employer in need of a Labor and Employment Lawyer, please do not hesitate to call Michelle at 903-236-4990 or toll-free at 888-236-4878.

Employment Discrimination, Texas Lawyer

Texas Employment Law

Texas is an employment at will state.  As recognized by the Texas Workforce Commissionabsent a statute or an express agreement (such as an employment contract) to the contrary, either party in an employment relationship may modify any of the terms or conditions of employment, or terminate the relationship altogether, for any reason, or no particular reason at all, with or without advance notice.

However, there are limitations to the “employment at will” doctrine.  One exception is the “public policy” exception which protects employees from termination or adverse job action in retaliation for the employee having refused to commit a criminal act on the employer’s behalf.

In addition, an employer cannot discriminate against an employee. The Texas Workforce Commission Civil Rights Division (TWCCRD) enforces the Texas Commission on Human Rights Act, (TCHRA). Chapter 21 of the Texas Labor Code codifies the Texas Discrimination laws:

Sec. 21.051.  DISCRIMINATION BY EMPLOYER.  An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer:

(1)  fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment; or

(2)  limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect in any other manner the status of an employee.

Sec. 21.055 also makes it an unlawful employment practice to retaliate or discriminate against a person who (1)  opposes a discriminatory practice; (2)  makes or files a charge; (3)  files a complaint; or (4)  testifies, assists, or participates in any manner in an investigation, proceeding, or hearing.

If you have suffered an employment harm, because of your racecolorreligionnational originsex (including sexual harassment and pregnancy), agedisability, or retaliation, the TWCCRD may have jurisdiction to investigate your claim.

Texas is also a right to work state.  Under the Texas right to work laws, employment may not be conditioned or denied on the basis of membership or non-membership in a union.  See the Texas Labor Code  §§101.052-.053.

Federal Employment Law

There are also Federal laws prohibiting job discrimination which are enforced by the EEOC:

The federal laws prohibit employers from using neutral employment policies and practices that have a disproportionately negative effect on applicants or employees of a particular race, color, religion, sex (including pregnancy), or national origin, or on an individual with a disability or class of individuals with disabilities, if the polices or practices at issue are not job-related and necessary to the operation of the business.

After timely filing with the EEOC and/or TWCCRD and allowing the agencies to investigate, employees may receive a Notice of Right to Sue.  Please see our post EEOC Charge of Discrimination.

Board Certified Labor and Employment Lawyer

East Texas Attorney, Michelle Jones is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization and has over 27 years experience helping employers.  If you are an employer in need of a Labor and Employment Lawyer, please do not hesitate to call Michelle at 903-236-4990 or toll-free at 888-236-4878.

Sexual Abuse, Texas Lawyer

Sexual Abuse

Sexual abuse is unwanted sexual activity, with perpetrators using force, making threats or taking advantage of victims not able to give consent.

Child sexual abuse is particularly egregious.  In Texas, child sexual abuse is defined in the Family Code in CHAPTER 261. INVESTIGATION OF REPORT OF CHILD ABUSE OR NEGLECT.   Examples of child sexual abuse are fondling a child’s genitals, masturbation, oral-genital contact, digital penetration, and vaginal and anal intercourse.  Child sexual abuse also includes exposure, voyeurism, and child pornography.  Notably, “abuse” in the Texas Family Code  includes the failure to make a reasonable effort to prevent sexual conduct harmful to a child.

Sexual abuse often emotionally scars its victims for life.

If you or your child have been sexually abused, you should report it to the appropriate authorities and obtain professional help as soon as possible.

There are a number of resources for those that have been abused or are aware of abuse.  For example, see the American Academy of Child and Adolescent Psychiatry, the Texas Attorney General and other online resources.

Those with pedophilia – a sexual perversion in which children are the preferred sexual object – are referred to as pedophiles.  Unfortunately, pedophiles are often clever at infiltrating organizations that give them exposure to their victims.  Parents should take steps to protect their children.  Child Safety for Parents has some interesting suggestions.

Examples of sexual abuse are not hard to find.  A popular camp in Missouri, Kanakuk Kamp, has been struck by pedophiles;  the first time by a Christian camp director that worked at the camp for 10 years, only to have another counselor charged with sexually abusing several campers less than 2 years later.   For as much good as they do, the Boy Scouts of America and Catholic Church have had to deal with pedophiles.  Colleges and schools have had pedophiles.  Businesses and governmental entities must protect their employees and customers from sexual abuse and sexual harassment.  Any organization that cares for children must concern itself with protecting those children from sexual abuse.

The schools, churches and various activities in which your children participate should have policies, procedures and background checks to help prevent sexual abuse.

Business and governmental entities should have policies, procedures and background checks to help prevent sexual abuse and sexual harassment.

An organization that identifies a pedophile or suspects child sexual abuse should report it to the proper authorities immediately.  The abuse should never be ignored.  A pedophile that goes unreported is likely to strike again.

We have experience with civil (as opposed to criminal) sexual abuse cases, and if you need a Texas attorney, please do not hesitate to give East Texas Attorney, Chris JonesBoard Certified Personal Injury Trial Law, or Michelle JonesBoard Certified in Labor and Employment Law a call at 903-236-4990 for a free initial consultation or send us a message at Contact Us.

Texas Employment and Non Compete Agreements

Employment agreements with a non compete that places limits on former employees’ professional mobility are restraints on trade and are governed by  Chapter 15 of the Texas Business and Commerce Code,  Subchapter E. COVENANTS NOT TO COMPETE  ( the “Act” ).  Employment agreements not to disclose trade secrets and confidential information are not governed by the Act.

The Act sets forth the criteria for the enforceability of Covenants Not to Compete in Texas:

[A] covenant not to compete is enforceable if it is ancillary to or part of an otherwise enforceable agreement at the time the agreement is made to the extent that it contains limitations as to time, geographical area, and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary to protect the goodwill or other business interest of the promisee.

There are additional requirements for Physicians:

A covenant not to compete relating to the practice of medicine is enforceable against a person licensed as a physician by the Texas Medical Board if such covenant complies with the following requirements:

(1)  the covenant must:

(A)  not deny the physician access to a list of his patients whom he had seen or treated within one year of termination of the contract or employment;

(B)  provide access to medical records of the physician’s patients upon authorization of the patient and any copies of medical records for a reasonable fee as established by the Texas Medical Board under Section 159.008, Occupations Code; and

(C)  provide that any access to a list of patients or to patients’ medical records after termination of the contract or employment shall not require such list or records to be provided in a format different than that by which such records are maintained except by mutual consent of the parties to the contract;

(2)  the covenant must provide for a buy out of the covenant by the physician at a reasonable price or, at the option of either party, as determined by a mutually agreed upon arbitrator or, in the case of an inability to agree, an arbitrator of the court whose decision shall be binding on the parties; and

(3)  the covenant must provide that the physician will not be prohibited from providing continuing care and treatment to a specific patient or patients during the course of an acute illness even after the contract or employment has been terminated.

Non compete agreements were once held to be unenforceable in Texas on the basis that they were in restraint of trade and contrary to public policy.  Later, “people and the courts” came to recognize that “it was in the interest of trade that certain covenants in restraint of trade should be enforced.” Addyston Pipe & Steel Co., 85 F. 271, 280  (6th Cir. 1898), aff’d 175 U.S. 211 (1899).

Recently, the Texas Supreme Court examined Texas Non Compete Agreements subject to the Act in Marsh USA Inc. v. Cook and found that a non competition agreement is enforceable if it is reasonable in time, scope and geography and, as a threshold matter, “if it is ancillary to or part of an otherwise enforceable agreement at the time the agreement is made.” TEX. BUS. & COM. CODE § 15.50(a).  The Supreme Court set forth a two-step inquiry to determine the threshold requirement for enforceability under the Act:

First, a determination is made as to whether there is an “otherwise enforceable agreement” between the parties.

Second, a determination is then made as to whether the covenant is “ancillary to or part of” that agreement.

If these two threshold requirements are met, then the Court looks to whether the non compete is reasonable in time, scope and geography.

When an employee subject to an employment agreement with a non compete leaves an employer, it often results in a contentious situation.  Even though the Texas Supreme Court set forth the guidelines for covenants not to compete, interpretation and application of the guidelines can be difficult. Reasonableness is often in the eye of the beholder and depends on whether you are the Employer or Employee.

If you are in need of a Board Certified Labor and Employment Lawyer in East Texas or local counsel in Gregg County or the Eastern District of Texas,  please contact Michelle JonesJones & Jones, Attorneys at Law, at 888-236-4878 or contact us by email.

Wage and Hour Law

Fair Labor Standards Act

The Federal minimum wage, overtime pay, recordkeeping, and child labor requirements of the Fair Labor Standards Act are overseen by the Wage and Hour Division (WHD) of the U.S. Department of Labor.  WHD also administers and enforces the prevailing wage requirements of the Davis Bacon Act and the Service Contract Act and other statutes applicable to Federal contracts for construction and for the provision of goods and services.

The federal law commonly known for minimum wage, overtime pay, child labor, recordkeeping, and special minimum wage standards applicable to most private and public employees is the Fair Labor Standards Act (FLSA).

The FLSA provides the U.S. Department of Labor with civil and criminal remedies, and also includes provisions for individual employees to file private lawsuits. The 1989 Amendments to FLSA added a provision for civil money penalties (CMP) for repeated or willful minimum wage or overtime violations.

The FLSA does require that employers keep accurate records of hours worked and wages paid to employees.  Fact Sheet #21: Recordkeeping Requirements under the Fair Labor Standards Act (FLSA) provides a summary of the FLSA’s record keeping regulations..

For employees who work on contracts with the Federal government,  The Davis-Bacon and Related Acts cover workers on Federal construction contracts, and on construction contracts with State and local governments that are Federally financed or assisted, in whole or in part. Workers on Federal service contracts are covered by McNamara-O’Hara Service Contract Act (SCA) , and workers on Federal supply contracts are covered by Walsh-Healey Public Contracts Act (PCA).

FLSA provides the agency with civil and criminal remedies, and also includes provisions for individual employees to file private lawsuits. The 1989 Amendments to FLSA added a provision for civil money penalties (CMP) for repeated or willful minimum wage or overtime violations.

If receive you notice that you are being investigated by the Department of Labor concerning these matters, we recommend you contact a Labor and Employment lawyer.

Board Certified Labor and Employment Lawyer

East Texas Attorney, Michelle Jones is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization and has over 23 years experience helping employers.  If you are an employer in need of a Labor and Employment Lawyer, please do not hesitate to call Michelle at 903-236-4990 or toll-free at 888-236-4878.

EEOC Charge of Discrimination, Defending and Resolving

U.S. EEOCCharge of Discrimination

If you have received a charge of discrimination, the Equal Employment Opportunity Commission (EEOC) website describes  The Charge Handling Process.  You may be asked to provide information.  The EEOC may send you a Request for Information (RFI), request an on-site visitand/ or request witness interviews of your employees.  You may also have the opportunity to submit a Statement of Position.

After completing the investigation, the investigator will

  • Issue a Dismissal and Notice of Rights that tells the charging party s/he has the right to file a lawsuit in federal court within 90 days from the date of receipt of the letter; or
  • Issue a Letter of Determination stating that there is reason to believe that discrimination occurred and inviting the parties to join the agency in seeking to resolve the charge, through an informal process known as conciliation; and
  • If the Charge is not resolved the EEOC has the authority to file a lawsuit in federal court to enforce violations of its statutes.  The  EEOC may  decide not to litigate and send the charging party  a Notice of Right to Sue allowing the charging party to file a lawsuit in federal court within 90 days.

It is our recommendation that you retain a lawyer to represent and guide you through the process as soon as you receive the Charge of Discrimination.  If you deal with the Charge seriously and correctly in the beginning, you may be able to get it dismissed or resolved to your satisfaction.  You  should not  ignore  or fail to respond to the EEOC.  Even if it is not dismissed, there may be a way to resolve the Charge without a lawsuit.  Three methods of resolution include mediation, settlement and conciliation.  These methods are described on the EEOC website Resolving a Charge.

An experienced Board Certified Labor and Employment Lawyer such as Michelle Jones may be able to help you through the process.

Board Certified Labor and Employment Lawyer

East Texas Attorney, Michelle Jones is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization and has over 23 years experience helping employers.  If you are an employer in need of a Labor and Employment Lawyer, please do not hesitate to call Michelle at 903-236-4990 or toll-free at 888-236-4878.

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