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Texas Employment Law Update

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Category Archives: Wage & Hour

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A Broken Clock is Right Twice Per Day: Supreme Court of Texas Holds Lilly Ledbetter Fair Pay Act Does Not Apply to Claims under State Law

Posted in Case Summaries, Discrimination, Wage & Hour
I wrote back in April 2010 that I thought the Houston Court of Appeals decision in Prarie View A&M v. Chatha applying the federal Lilly Ledbetter Fair Pay Act (“Ledbetter Act”) to claims arising under the Texas Commission on Human Rights Act (TCHRA) was wrongly decided. Last month the Supreme Court of Texas agreed with me… Continue Reading

Finally, Private Litigants Can Settle Bona Fide FLSA Disputes Without DOL or Court Supervision!

Posted in Case Summaries, Wage & Hour
Some of you may be surprised to learn that conventional wisdom was that claims arising under the Fair Labor Standards Act (the federal law requiring the payment of minimum wage and overtime to most employees) cannot be released or waived without court or Department of Labor supervision. I certainly thought that until several years ago when I had… Continue Reading

Paying Texas Employees Using Debit Cards

Posted in Human Resources, Wage & Hour
Some employers have experimented using debit card payroll systems to decrease their payroll processing and administration costs.  Frequently, Texas employers ask whether they can pay their Texas employees using debit cards.  The answer is "yes" but only with the employee consent. Texas law provides that employees must be paid in one of four forms: In U.S. currency;… Continue Reading

Fifth Circuit Holds 24 Hour Fitness Arbitration Agreement Illusory and Unenforcable

Posted in Arbitration, Case Summaries, Wage & Hour
24 Hour Fitness operates health clubs and fitness facilities across the country.  As part of its operations, 24 Hour Fitness employs sales representatives.  As a condition of employment, employees are required to enter into arbitration agreements to arbitrate their employment disputes with their employer.  FLSA claims (i.e., overtime and minimum wage claims) are covered within the scope of the… Continue Reading

End-of-Year Bonuses, the Regular Rate of Pay and Overtime

Posted in Wage & Hour
With many employers considering whether and when to pay end-of-year or holiday bonuses, I thought it was a good time to review the rules for when bonuses or other compensation must be included in the regular rate of pay for purposes of paying overtime.  This is one issue that still trips up Texas employers. Nonexempt employees are entitled to overtime… Continue Reading

Court Enters Judgment Against Police Officers on Overtime Suit Against City

Posted in Case Summaries, Wage & Hour
In a recent case out of the U.S. District Court for the Northern District of Texas, a federal judge entered summary judgment for the City of Fort Worth in an FLSA overtime case filed by four former police officers.    In Clark v. City of Fort Worth, Texas, four retired City of Fort Worth police officers filed a FLSA putative collective action seeking to represent… Continue Reading

Congress Hears Employer Suggestions on Modernizing the FLSA

Posted in Wage & Hour
Yesterday, the Congressional Education and the Workforce Subcommittee on Workforce Protections heard suggestions on how the FLSA can and should be modernized to better reflect the realities of the 21st Century Workforce.  The following summarizes the suggestions made by business and employer representatives on how the FLSA should be modernized: Update the computer professional exemption by broadening… Continue Reading

Congressional Subcommittee to Examine the Effect of the FLSA and the Modern Workforce

Posted in Wage & Hour
This morning the Education and the Workforce Committee Subcommittee on Workforce Protections will examine whether the FLSA is outdated in today’s modern workforce.  The hearing is entitled  “The Fair Labor Standards Act: Is It Meeting the Needs of the Twenty-First Century Workplace?” According to the Subcommittee’s media advisory: Despite the broad impact of the [FLSA] on the… Continue Reading

Governor Perry Closes Loophole on Theft of Service Law

Posted in Legislation, Wage & Hour
Governor Perry signed SB 1024 eliminating a loophole that previously existed for a criminal theft of service charge.  Under prior law, a party obtaining services from another under a promise to pay could avoid a criminal charge of theft of service so long as the party was making minimal payments.  According to the bill’s analysis: Theft of wages occurs when… Continue Reading

DOL Publishes Smart Phone Time Keeping App

Posted in Human Resources, Wage & Hour
Today the U.S. Department of Labor announced publication of a time keeping App for smart phones –the DOL -Timesheet.  Employees can download the free App through iTunes and can be used with the iPad, iPhone and iTouch.  The App is an electronic timesheet that allows employees to record their hours worked and calculate the amount of wages (including overtime) the… Continue Reading

Oral Complaints of Wage and Hour Violations Sufficient to Provide Protection from Retaliation

Posted in Case Summaries, Retaliation, Wage & Hour
The Fair Labor Standards Act is the federal law that requires most employers to pay a minimum wage and overtime.  The FLSA also includes an anti-retaliation provision that prohibits an employer from discharging any employee who has "filed a complaint" under the FLSA because of that complaint.  The issue at the high court in Kasten v. Saint-Gobain… Continue Reading

Fifth Circuit Holds that FLSA Action Is Improper Forum for Employer to Seek Set-Off Against Wage and Overtime Claims

Posted in Case Summaries, Judicial Updates, Wage & Hour
Employers often consider asserting counterclaims against employees who file lawsuits against them.  Most lawyers representing employers counsel against filing counterclaims except in exceptional cases (e.g., an employee’s theft of trade secrets or breach of a covenant not to compete). However, where an employer pays an employee valuable severance benefits in return for a release or a… Continue Reading

Police Sergeant Sues for Overtime Based on Time Spent Reading and Responding to E-mails

Posted in Wage & Hour
Last year I wrote about the risks associated with providing company issued cell-phones or PDA’s to nonexempt employees.  Since that post, there continues to be lawsuits filed seeking unpaid overtime for the off-the-clock time nonexempt employees spend reading and responding to work-related e-mails.  The most recent example is that of a police sergeant for the City of… Continue Reading

Facts Make the Difference in Misclassification Cases

Posted in Wage & Hour
Lawyers prosecuting and defending wage and hour misclassification cases (i.e., exempt/nonexempt and employee/contractor) will emphasize how fact intensive these inquiries can be.   The importance of factual distinctions in litigating misclassification cases is demonstrated by two cases recently decided by the Fifth Circuit.  In Cromwell v. Driftwood Electrical Contractors, a panel of the court of appeals held… Continue Reading

Fifth Circuit Holds Cable Splicer was Independent Contractor, Not an Employee

Posted in Case Summaries, Wage & Hour
In another cable splicer misclassification case arising in the aftermath of hurricane Katrina, the Fifth Circuit affirmed a trial court decision that Louis Thibault was an independent contractor rather than an employee. Therefore, he was not entitled to overtime under the FLSA. Thibault owned a business in his home state of Delaware selling picnic tables, storage… Continue Reading

Austin Enacts Mandatory Rest Breaks for Construction Industry

Posted in Wage & Hour
Effective July 29, 2010, the City of Austin requires employers in the construction industry to provide at least ten minute rest breaks to their employees for every four hours worked.  The ordinance applies to all employers engaged in work associated with construction projects including alteration, demolition, building excavation, maintenance and renovation of structures or sites. Employees… Continue Reading

DOL Issues Administrator’s Interpretation on Definition of “Clothes” and Whether Changing Clothes is a Principal Activity

Posted in Wage & Hour
The Department of Labor’s Wage and Hour Division issued its second Administrator’s Interpretation.   The Administrator Interpretations are issued by the Division in areas where it believes it is useful to clarify the law as it relates to an entire industry, a category of employees, or to all employees. Administrator’s Interpretation No. 2010-2 discusses the Fair Labor Standards Act’s… Continue Reading

Fifth Circuit Holds Employer Used Per Diem as Ruse to Avoid Proper Overtime Rate

Posted in Case Summaries, Wage & Hour
The Fifth Circuit Court of Appeals affirmed that an employer willfully violated the FLSA by excluding “per diem” from the employee’s regular rate of pay and thereby avoiding increased overtime wages. In Gagnon v. United Technisource, Inc., the employer separated the plaintiff’s compensation into straight time, an hourly per diem payable up to the first 40… Continue Reading

U.S. Department of Labor Issues Revised Child Labor Regulations

Posted in Child Labor, Wage & Hour
The U.S. Department of Labor has issued revised regulations dealing with child labor in non-agricultural employment.  The new regulations take effect on July 19, 2010.  The new regulations specify the kinds of employment that minors may perform and the hours in which they can perform the work.  Any Texas employer employing individuals age 18 or younger should closely review these… Continue Reading

Wage & Hour Division Concludes that Most Mortgage Loan Officers Do Not Qualify for Administrative Exemption

Posted in Wage & Hour
As I wrote yesterday, the Wage & Hour Division of the U.S. Department of Labor has ceased issuing detailed, fact-specific opinion letters.  In the first of the Administrative Interpretations the Division will issue in lieu of opinion letters, the Division has concluded that most mortgage loan officers will not qualify for the administrative exemption to the… Continue Reading