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William Fulton Broemer

William Broemer’s Answers

1,229 total


  • Employment

    What is the difference between W2 Contractor and an employee- if there is any?

    William’s Answer

    There is no such thing as a W-2 Contractor. In Texas, the difference between an independent contractor (1099 worker) and an employee (W-2 worker) is determined on the basis of several factors. No single factor controls the employee’s ultimate designation. Below, I have provided a link to the Texas Workforce Commission’s web page regarding independent contractor v. employee determinations. Hopefully, it will help you determine your status. If you believe you are an employee, rather than an independent contractor, you can file a complaint with the TWC and they will investigate and make a ruling on your case. You can also consult an experienced labor and employment attorney to assist you with this process.

    Good luck.
    http://www.twc.state.tx.us/news/efte/ics_contract_labor.html

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  • Do I have to tell my employer I am pregnant? If so when do I let them know? If I am to tell them on my own, can they fire me?

    Can my employer fire me for being dishonest about being pregnant?

    William’s Answer

    There are two Federal laws which protect pregnant women in the workplace. Under the Pregnancy Discrimination Act of 1978 (“PDA”, 42 U.S.C. 2000e(k)), an employer cannot discriminate against a pregnant employee, solely on the basis of her pregnancy. Pregnant employees are also protected under the Family and Medical Leave Act (“FMLA”). Under the FMLA, an employer with 50 or more employees must allow employees to take up to 12 weeks of unpaid leave for certain family and medical reasons (which include pregnancy). Pregnant employees are also protected by Texas law. Below are links to Federal and Texas websites which provide additional information regarding laws which related to pregnant employees.
    Please note, however, that these laws do not prevent an employer from terminating an employee for dishonesty.

    http://www.eeoc.gov/facts/fs-preg.html
    http://www.dol.gov/compliance/laws/comp-.htm
    http://www.eeoc.gov/eeoc/publications/pregnancy_factsheet.cfm
    http://www.twc.state.tx.us/news/efte/pregnancy_rights.html

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  • Can an employer put a stipulation that you can't have a job to qualify for a severance check?

    A city solid waste dept. is being dissolved to privatization. The city council approved a severance package but said we can't have a job lined up to get the check.

    William’s Answer

    In Texas an employer is not legally required to pay severance to departing employees. Therefore, the terms of severance can be established by the Employer. However, if you have an employment contract or severance agreement, or you are a unionized employee working under a collective bargaining agreement, you may be eligible for contractually defined severance benefits. If you have any such document, you should consult an experienced labor and employment attorney and allow that attorney to review your contract or collective bargaining agreement. That attorney can advise you on the existence and viability of any claim for severance benefits. Good luck.

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  • To what extent is a Non-Compete contract in Texas enforceable if my employer terminates my employment-at-will status?

    There is a non-compete clause in my current contract (W-2 contract employment) preventing me from working for their client through another tech staffing firm for up to eighteen(18) months after separation from my current employer. Does this apply...

    William’s Answer

    You raise two separate issues: non-compete agreements and workplace defamation.
    1) Non-Compete Agreements: In Texas, an employer may make execution of a non-compete agreement a condition of (new or continued) employment. That includes temporary or seasonal employment. Employers can adopt a “sign it or leave” policy. That alone will not invalidate an otherwise enforceable non-compete agreement.
    In Texas, covenants not to compete are governed by Texas Business & Commerce Code §15.50. A link to the statute is provided below. Generally, if the non-compete agreement is directly related to the employment, restricted to the employee’s activities and a reasonable geographical area, and secured through valid consideration (which generally means continued employment or some sort of monetary incentive), it will be enforceable. Otherwise valid non-compete agreements are enforceable regardless of whether the employee resigns or is terminated. The most cited Texas Supreme Court case on this subject is the case of Marsh USA v. Cook. A link to this case is provided below.
    Anyone who is considering violating a non-compete arrangement should consult an experienced labor and employment attorney.
    http://law.onecle.com/texas/business/15.50.00.html
    http://law.justia.com/cases/texas/supreme-court/2011/2001724.html

    2) Workplace Defamation: In Texas, a former employer can communicate with current or potential employers regarding a person's conduct or work history. Chapter 103 of the Texas Labor Code protects former employers against defamation lawsuits based upon job references, so long as the employer does not knowingly report false information. However, if the former employer says anything false with the intention of damaging the former employee’s business reputation or employability, that employer may be committing libel and slander. That employer may also be tortiously interfering with the employee’s advantageous business relationships. If the former employer’s false and malicious statements damage the employee by preventing him/her from obtaining employment, or by causing an employment termination, that person may have a claim against the former employer.

    If you feel your former employer is saying anything false about you and attempting to damage your reputation and/or prevent you from being hired, you should consult an employment attorney immediately.

    Good luck.

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  • What's the laws on salaried employees?

    I'm a salaried employee, driver. My pay this week was cut by almost half it's original amount. I only missed one day of work this week. How can it be cut by nearly half?

    William’s Answer

    You raise three issues: reduction in compensation, (potentially exempt) salaried status, and truck driving.

    1) Reduction in Compensation: Texas is an employment at will state. Typically, unless an employee has an employment contract, or is employed under a collective bargaining agreement through a union, the employer can modify (including reduction in compensation, or changes in schedules) or terminate the employment at any time with or without cause. However, an employer generally cannot modify or terminate the employment for prohibited discriminatory reasons (such as racial discrimination), or in retaliation for certain protected actions (such as whistle-blowing). The situation described does not include any elements of prohibited discrimination or retaliation. Nor does changing compensation or schedules violate any established wage and hour laws, such as the Fair Labor Standards Act, unless the changes result in express violations of the act (such as reduction of compensation below minimum wage, or refusing to pay overtime to non-exempt employees). I have provided a link, below, to the Department of Labor's web page regarding the FLSA for your reference. I have also provided a link, below, to the TWC's web page regarding work schedules and overtime wages.
    Note that an employer generally cannot modify or terminate the employment for prohibited discriminatory reasons (such as racial discrimination), or in retaliation for certain protected actions (such as whistle-blowing). The situation you describe does not appear to constitute prohibited discrimination or retaliation.
    http://www.dol.gov/whd/flsa/
    http://www.twc.state.tx.us/news/efte/work_schedules.html

    2) Exempt Salaried Status: Contractors and exempt employees are not legally entitled to overtime wages, regardless of the number of hours they work. Non-exempt employees must be paid overtime wages in accordance with the requirements of the Federal Fair Labor Standards Act (“FLSA”). There are several criteria which apply to a determination of whether an employee is exempt or non-exempt. Here are links to web pages from the Texas Workforce Commissions and the US Department of Labor. These pages provide the standards used to determine if an employee is exempt from overtime. Maybe the information in these links will help you evaluate your situation.
    http://www.twc.state.tx.us/news/efte/salary_test.html
    http://www.dol.gov/elaws/esa/flsa/screen75.asp
    If a non-exempt employee is denied overtime wages for hours worked in excess of 40 per week, that employee can file a claim for recovery of the unpaid overtime wages. The employee may also be able to recover certain liquidated damages (typically double the total underpaid wage amount) when an employer wrongfully fails to pay overtime wages. Here is a link to additional information relating to FLSA overtime claims.
    http://www.dol.gov/whd/regs/compliance/fairpay/complaint.htm

    3) Special Rules for Truck Drivers: Overtime eligibility and requirements are established and enforced under the federal Fair Labor Standards Act (“FLSA”) 29 U.S.C. 201, et seq. The FLSA applies to employees, not specifically exempt, who are:
    A. Engaged in commerce; or
    B. Engaged in the production of goods for commerce: or
    C. Employed in an enterprise engaged in commerce or the production of goods for commerce.
    29 U.S.C. §§ 206(a)-(b), 207(a)(1).
    An exemption arises under Section 13(b)(1) of the FLSA which provides an overtime pay exemption for motor carrier operations. This exemption applies to applies to truck drivers whose activities affect the safety of operation of interstate motor vehicle, and who are subject to regulation by the Secretary of Transportation under Title 49 of the U.S.C. See 49 U.S.C. § 31502.

    This is a complex area of the law. If you feel you've been denied overtime in violation of the MCA, you should consult an experienced labor/employment attorney.

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  • I quit my job today without a real notice to my employer. What can happen?

    I got a part time job about 2 weeks ago at a bakery. The day after, I was called about coming in for an interview an apt complex great money as a full time employee! The apt said I needed to wait about 2 weeks b/c we had to wait for my drug screen...

    William’s Answer

    An employer cannot force you to give two weeks' notice. An employer may withhold severance benefits or other fringe benefits when an employee fails to give adequate notice of termination. However, it is unlikely that any such benefits are included in compensation for the position described.

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  • Can I pursue a lawsuit for discrimination?

    I am a 46 year old white male. I worked for a company for 2 years always receiving positive evaluations. I had a job offer from another company in 9/2014 for a great deal more money. My manager talked me into staying by giving me a substantia...

    William’s Answer

    Texas is an employment at will state. Typically, unless an employee has an employment contract, or is employed under a collective bargaining agreement through a union, the employer can modify or terminate the employment at any time with or without cause for any non-discriminatory reason. However, an employer generally cannot alter or terminate employment for prohibited discriminatory reasons (such as racial discrimination), or in retaliation for certain protected actions (such as whistle-blowing). The description of the situation which you have provided does not include the elements of prohibited discrimination. Additionally, employers are not required to treat all employees the same, so long as the disparate treatment is not part of prohibited discrimination or retaliation (as described above).

    You mention that you are 46 years old, but provide no indication that this is the cause of your termination. Texas Labor Code Chapter 21 (Chapter 21) the Age Discrimination in Employment Act (“ADEA”) forbid discrimination against people who are age 40 or older. However, age discrimination claims arising from termination of an older worker and replacement with a younger worker are often very difficult to win. I have provided links to web pages from the Texas Workforce Commission and the EEOC on this subject. If you feel you have been discriminated against because of your age, you should consult an experienced labor and employment attorney.
    http://www.eeoc.gov/laws/statutes/adea.cfm
    http://www.twc.state.tx.us/jobseekers/age-discrimination

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  • Can an employer cut hours from 33 to 8 every week without notice

    My employer was bought out by another grocery store. I went from working 32-39 hrs/wk to 0-8/week without notice or warning. I can work in 5 different Dept's. & I get very upsep to see 2 new people got hired and are getting 32-38 hours Also, if h...

    William’s Answer

    Texas is an employment at will state. Typically, unless an employee has an employment contract, or is employed under a collective bargaining agreement through a union, the employer can modify or terminate the employment at any time with or without cause. However, an employer generally cannot modify or terminate the employment for prohibited discriminatory reasons (such as racial discrimination), or in retaliation for certain protected actions (such as whistle-blowing). The situation you describe does not appear to constitute prohibited discrimination or retaliation. Nor does changing schedules violate any established wage and hour laws, such as the Fair Labor Standards Act, unless the changes otherwise violate the act (such as refusing to pay overtime to non-exempt employees). I have provided a link, below, to the Department of Labor's web page regarding the FLSA for your reference. I have also provided a link, below, to the TWC's web page regarding work schedules and overtime wages.
    Note that an employer generally cannot modify or terminate the employment for prohibited discriminatory reasons (such as racial discrimination), or in retaliation for certain protected actions (such as whistle-blowing). The situation you describe does not appear to constitute prohibited discrimination or retaliation.
    http://www.dol.gov/whd/flsa/
    http://www.twc.state.tx.us/news/efte/work_schedules.html

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  • I was wrongfully terminated

    I was terminated because they said i stole which i would never ever and i was on camera never put anything in my pockets and i talked to owner at the mall said he would look into it he never got back to me also saying that i said bad stuff about c...

    William’s Answer

    Texas is an employment at will state. Typically, unless an employee has an employment contract, or is employed under a collective bargaining agreement through a union, the employer can modify or terminate the employment at any time with or without cause for any non-discriminatory reason. However, an employer generally cannot alter or terminate employment for prohibited discriminatory reasons (such as racial discrimination), or in retaliation for certain protected actions (such as whistle-blowing). The description of the situation which you have provided does not include the elements of prohibited discrimination.

    Additionally, employers are not required to treat all employees the same, so long as the disparate treatment is not part of prohibited discrimination or retaliation (as described above).

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  • Can my employer try to fill my position after they have laid me off without bringing me back first?

    McDermott $175,000 a year job

    William’s Answer

    Texas does not have a "lay off" statute. Texas is an employment at will state. Typically, unless an employee has an employment contract, or is employed under a collective bargaining agreement through a union, the employer can modify or terminate the employment at any time with or without cause for any non-discriminatory reason. However, an employer generally cannot alter or terminate employment for prohibited discriminatory reasons (such as racial discrimination), or in retaliation for certain protected actions (such as whistle-blowing). The description of the situation which you have provided does not include the elements of prohibited discrimination.

    Additionally, employers are not required to treat all employees the same, so long as the disparate treatment is not part of prohibited discrimination or retaliation (as described above).

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