My director saved a disciplinary written warning on a shared drive for the entire company to see by mistake. When this was brought to her attention she deleted the file, admitting that it was a mistake and was never supposed to be there. Not only ...
There are two parts to this question: the accessibility of the form, and the termination.
1) Accessible Form: In Texas, an employer or former employer can communicate with current, past, or potential employers, and other parties, regarding a person's conduct or work history. Chapter 103 of the Texas Labor Code protects former employers against lawsuits based upon disclosure and job references, so long as the employer does not knowingly report false information. However, if the employer says anything false with the intention of damaging the 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 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. Here is a link to Chapter 103 of the Labor Code.
Additionally, information in an employer’s personnel file is the employer’s property and, with some exceptions (like protected health information), the employer may use or share that information however it sees fit.
2) Termination: 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).
my husband worked for his company for 11 years and they fired him over what they are saying is attendance but we know that is not true. We have asked to get copies for his records but they will not give him anything they will not even show him any...
There are two issues here: termination and retirement account.
Termination: 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).
Retirement Account: With some very few exceptions (governmental and church plans), retirement plans and 401(k)s are governed by the Employee Retirement Income Security Act (“ERISA”). Every 401(k) is established through a Plan Document. The terms of the Plan Document dictate when and how contributions and withdrawals are made. Subject to very limited exceptions, the terms of the Plan Document are strictly enforced by the Federal courts. Every participant is entitled to a copy of their Plan Document within thirty days of presenting a written request for the Document to the Plan Administrator. Sometimes, you can simply pick up a copy from the employer's HR or benefits department. You should also ask for a Summary Plan Description.
The Plan Document will determine how participant accounts are handled following termination of employment, retirement, and qualifying events. Many plans provide for the accounts to be held until the employee (or former employee) reaches retirement age. Without seeing this Plan Document, and knowing if the employee is really fully vested or not, no attorney here can answer the question. This issue is too important to fiddle around with free advice on a public online forum. Consult directly with an experienced ERISA attorney. Provide the attorney with the Plan Document and any account statements which will show the employee’s vesting status, and allow the attorney to provide direct, specific advice.See question
My supervisor has been rude and mean spirited toward me since she was hired a few months ago. Every time I request time off, she has refused it, stating they have no one to replace me. But yet other employees who work on days I am off, always ha...
There are two issues here: vacation (and time off) generally, and medical leave.
Vacation/time off: Neither Texas nor Federal law require employers to provide paid holidays, paid vacation, or other forms of paid time off (“PTO”). Some employees are entitled to paid time off under employment contracts or collective bargaining agreements. Otherwise, paid holidays and vacations are entirely discretionary with the employer. Absent a collective bargaining agreement or written, published policy, various employees within the same company can be treated differently so long as the disparate treatment is not directly related to prohibited discrimination (racial, gender, national origin, etc.).
Medical Leave: If you request time off to see a doctor or receive medical treatment, you may be entitled to unpaid leave under the FMLA. If an employee is qualified for, and approved for, medical leave under the Family Medical Leave Act (“FMLA”), the employer is required to provide protected leave. Here are the basics of FMLA eligibility.
To be eligible for FMLA benefits, an employee must:
•work for a covered employer;
•have worked for the employer for a total of 12 months;
•have worked at least 1,250 hours over the previous 12 months; and
•work at a location in the United States or in any territory or possession of the United States where at least 50 employees are employed by the employer within 75 miles.
Unpaid FMLA leave can be up to 12 weeks per 12 month period (26 weeks to care for a service-member). An employer may not discriminate or retaliate against an employee for seeking or taking FMLA leave.
Here is a link to the Department of Labor's FMLA Fact Sheet.
Our apartment complex is doing construction in the apartment above us and it's incredibly loud. I'm a teacher so I maintain a normal hours but my roommate is a NICU nurse so she sleeps during the day and works during the night. The construction ha...
This is not an employment question. I have moved it to the landlord & tenant forum. Hopefully, you'll get more responses from real estate attorneys. Meanwhile, here is a link to the City of Houston noise ordinance. https://www.municode.com/library/tx/houston/codes/code_of_ordinances?nodeId=COOR_CH30NOSOLERESee question
My company is holding my paycheck because a chainsaw came up missing I quit on Monday and today is the first time I've heard of it but the boss said I can't have my paycheck until the chainsaw returns that I didn't take
Chapter 61 of the Texas Labor Code is known as the Texas Payday Law. Under section 61.014 of the Payday Law, if an employee is laid off, discharged, fired, or otherwise involuntarily separated from employment, the employee’s final pay is due within 6 calendar days of discharge. If the employee quits, retires, resigns, or otherwise leaves employment voluntarily, the final pay is due on the next regularly-scheduled payday following the effective date of resignation. Whether employment termination is voluntary or involuntary is determined by employing the standards utilized in unemployment compensation claims. Generally, if the employee initiates the work separation and leaves while continued work is still available, the work separation is voluntary. If the employer initiates the work separation, i.e., the employee is fired, the work separation will be considered involuntary. Here is a link to the Texas Workforce Commissions web page on final compensation payment. http://www.twc.state.tx.us/news/efte/final_pay.html
Under the Fair Labor Standards Act (“FLSA”), an employer may make certain types of payroll deductions from an employee’s paycheck (including a final check) without the employee’s specific written consent. Permissible deductions include the cost of tools, safety equipment, and uniforms; disciplinary deductions (such as “fines” for tardiness, rule violations, or poor work); deductions to cover the cost of items lost or damaged by the employee; and deductions to cover ordinary cash register shortages not caused by some type of misappropriation.
For non-exempt employees, deductions may never cause the employee to earn less than the minimum wage and may never cut into pay for overtime hours. Any employer may not lawfully make deductions which reduce the employee’s pay below any statutorily required minimum wage or overtime premium that is due. Following any deductions, employers must pay at least the statutorily-required minimum wage and overtime premium finally and unconditionally, or “free and clear.” The allowable deductions under the FLSA for non-exempt employees include:
(1) meals, lodging, and other facilities furnished to the employee;
(2) tip credits;
(3) voluntary wage assignments;
(4) overpayments, loans, and wage advances;
(5) vacation pay advances;
(6) uniforms and uniform cleaning costs;
(7) employee-owed payroll taxes;
(8) union dues;
(9) court ordered garnishments or statutorily-required wage attachments; and
(10) cash shortages due to misappropriation.
Most other deductions require the employee’s written consent.
My Forman today said ...I saw you go in there at 133 and it's almost 150 now and I said I've only been in there 15 minutes and he said it doesn't take that long for a "bowel movement" and than went on calling it 20 minutes and we have work today a...
An employee who has a medical condition, covered under the Americans with Disabilities Act, which requires you to use the restroom often or for long periods, and if the Act applies to the employer, the employer may be required to make a reasonable accommodation for the medical condition; such as adjusted schedules permitting longer restroom breaks. Beyond that, however, Neither Federal nor Texas law require employers to give employees breaks. If, however, you are a unionized employee, your collective bargaining agreement may mandate break times. Additionally, if you require breaks due to an established disability, you may be entitled to a reasonable accommodation under the Americans with Disabilities Act. Here is a link to the Department of Labor's web page regarding breaks.
Additionally, 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.
Finally, 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).See question
I am employed as a VP of Sales with a national territory and based in Ohio. My employer is based in Texas. I signed a 3 year noncompete and non-solicitation agreement. I am looking to leave and possibly work in the same industry. I would like ...
The terms of the contract will govern the enforceability of the non-compete clause. We can't see the contract here, so none of the lawyers here will be able to address the scope of your particular 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 (usually part of some other agreement, like a non-disclosure agreement), 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. Most courts will uphold a non-compete if it is part of a non-disclosure agreement which controls the employee’s handling of confidential information. Mann Frankfort v. Fielding, 289 S.W.3d 844 (Tex. 2009). Link below.
Anyone (employer or employee) who is considering a non-compete arrangement should consult an experienced labor and employment attorney.
For the past few months I have informed my boss that an employee that has been getting more and more passive aggressive with my coworker and I. Nothing has been done, and it turns out I am taken out of doing certain jobs that everyone else does be...
The law requires an employer to pay an employee an agreed (and legally sufficient) rate for work done, and to provide a reasonably safe workplace. The law prohibits an employer from engaging in prohibited discrimination (based on race, gender, national origin, etc.). The law does not require an employer to make everybody be nice. Neither does the law require an unhappy employee to stay in a bad situation.See question
an applicant has informed me that He does have a record and it will not show on his background check because it is a federal case. He informed me that I could call the local parole office and ask to speak with his parole officer to ask what his ch...
Federal charges do show up on thorough background searches. An employer is allowed to contact a parole officer for information, but the parole officers are often reluctant to provide much detail. It would be wise to get the applicant's authorization in writing and provide that to the parole officer with your request.See question
Presently my Fair Housing disability discrimination claim against a senior living facility is in the Conciliation stage. The offending party wants me to agree not to in any way at any time disparage or make adverse comments about it/them in retur...
This is an open, online forum for the discussion of general legal principals. You present a very fact-specific situation and refer to documents the lawyers here cannot see. No attorney can responsibly give you useful advice without reviewing the documents in question and all of the fact in issue. I urge you to consult an experienced labor/employment attorney, face-to-face. Provide him/her with the documents in question and a full detailed set of facts, and allow the attorney to give you direct, specific advice. Anything else is playing with fire. Good luck.See question