Family Medical Leave Act
The Family Medical Leave Act (FMLA) permits eligible employees of covered employers to take protected leave up to twelve weeks of leave in a twelve month period for a serious medical condition of the employee or the employee’s immediate family member, childbirth and adopting a child. Employers often violate employee’s FMLA rights by unlawfully refusing the employee protected leave, by interfering with the employee’s approved FMLA leave or by retaliating against the employee for requesting FMLA leave. When an employer violates the employee’s FMLA rights the employee is entitled to recover lost wages, liquidated damages (similar to punitive damages), attorney’s fees and other financial compensation. The employee may also be entitled to seek reinstatement to his or her job.
Minimum Wage, Overtime Pay, Misclassification and Other Compensation Claims
Under federal and Texas law employees are entitled to be paid minimum wage plus overtime pay unless they are exempt from those provisions. An employer who fails to pay minimum wage and overtime pay to non-exempt workers is stealing from its employees and those employees are entitled to recover lost wages, liquidated damages equal to the amount of lost wages, attorney’s fees and other financial compensation. These include claims for tipped employees who may be underpaid due to improper tip pool deductions. Employees misclassified as independent contractors or exempt employees are also entitled to recover lost wages, liquidated damages, attorney’s fees and more.
Employees may have other compensation-related claims unrelated to minimum wage and overtime protections that can be prosecuted, such as claims for unpaid bonuses or commissions that the employee has earned but the employer refuses to pay.
Employee Retirement and Insurance Benefit Claims
Most employee benefit plans are covered by the Employee Retirement Income Security Act (ERISA) that protects employee benefits earned under covered plans from employer mismanagement. These include 401k and 403b plans, most defined benefit pension plans, ESOPs, health insurance plans, disability plans, employer provided life insurance and so forth. ERISA requires employers to exercise a high degree of care in managing benefits and prohibits the employer from using the benefit plan to its own benefit. When employers violate ERISA provisions by improperly administering the plan or improperly denying benefits the employee is entitled to remedies against the employer.
A growing problem with ERISA-covered benefit plans is employers seeking pension overpayment recoveries in which the employer lazily miscalculated a defined benefit pension payment and is now pursuing the retiree to recover payment. These overpayment recovery efforts can put the retiree in financial danger after making employment and retirement plans based upon payment expectations provided by the employer. Defenses are available to these recovery efforts.
In addition to ERISA benefit plans there are a number of non-ERISA benefit plans offered by employers such as stock plans and non-qualified executive compensation plans. Employers are still subject to certain regulations and plan rules with these types of plans and failure to properly administer these plans or make proper payment of benefits may also give the employee or retiree claims against the employer.
Background Checks, Expunctions and Nondisclosure Orders
Employer background checks are common when applying for new jobs. A criminal record can easily be the difference between obtaining a job or professional license even if the record relates to a conviction or arrest that had nothing to do with the job or license. Texas and federal law limits some of the criminal background an employer or licensing agency can find in a background check but depending upon the license or job the background check may uncover almost anything in your history. Texas provides some opportunities to wipe out or seal records of unprosecuted arrests and deferred adjudication through an expunction (sometimes referred to as expungement) or nondisclosure order. If your arrest or deferred adjudication qualifies for one of these remedies then I can help you improve your job opportunities by removing this information from employment background checks.
Employers are prohibited from retaliating against an employee who takes action to oppose workplace discrimination or assert an employment right like FMLA or a wage claim for unpaid wages or overtime pay. An employee does not have to file a complaint with a government agency or file a lawsuit. It is enough that the employee complained to management or human resources about the unlawful conduct. The retaliation by the employer creates a separate claim against the employer for the retaliation. Even if the employee cannot prevail on the original claim the employee may still have remedies against the employer solely for the retaliation.
Non-Compete Agreements and Severance Agreements
Non-compete agreements and severance agreements affect your future rights and ability to obtain employment. Not all non-compete agreements are valid under Texas law and reliance on a defective non-compete agreement can severely harm your job prospects. Similarly, severance agreements often include waivers of claims against the employer and often these waivers are made in exchange for sums of money well below the value of a legitimate employment claim. Before signing either a non-compete agreement or a severance agreement you should speak with an employment lawyer to determine your rights under the agreement and whether it is in your interests to enter into the agreement.
Labor Relations, Unions and Other Collective Employment Rights
The National Labor Relations Act gives you the right to work with your coworkers to improve workplace conditions, pay and other employment issues. You can work together with your coworkers through an organized union or through an informal organization. If you are a union worker then your collective bargaining agreement will provide certain protections for your job beyond the at-will relationship that can be used in the grievance process with the union or through other legal action, including arbitration and mediation.
Wrongful Discharge or Wrongful Termination
In Texas a termination creates a claim for wrongful discharge under limited circumstance. The majority of these circumstances include termination in violation of a statute, such as anti-discrimination laws or in retaliation for complaining of unlawful conduct by the employer. There are also wrongful discharge claims available when an employee is fired for whistleblowing on certain types of unethical or illegal behavior. A terminated employee may also have a claim for wrongful discharge in a Sabine Pilot claim in which the employee is fired for refusing to perform an illegal act at the employer’s direction. A wrongful discharge claim gives employees similar opportunities for financial recovery similar to other employment claims.