Wednesday, July 30, 2014

How Should a Texas Employer Handle a Wage Withholding Order/Notice?



You’ve just received a document entitled “Order/Notice to Withhold Income for Child Support,” or some similar title, related to one of your employees.  Now what?

First, do not ignore this document! A Texas employer who knowingly fails to withhold court-ordered child support may be subject to a $200 fine for each pay period during which it failed to withhold income and remit child support to the appropriate agency. You are required to begin deducting for child support during the first pay period following your receipt of this Order/Notice.

Under Section 158.206 of the Texas Family Code, you are NOT LIABLE to your employee if you comply with the Order/Notice. In fact, you could be liable to your employee for the amounts you failed to withhold if you do not comply with the order. So put this document on the top of your “to do” list.

Next, read the Order/Notice carefully. In Texas, almost every child support payment must be made through the Office of the Attorney General of Texas, Child Support Division’s State Disbursement Unit (“SDU”). You may, on occasion, be ordered to remit payment to another government agency. It is extremely unlikely that you will be ordered to make child support payments directly to an individual or his/her attorney. Follow the directions concerning the amount to be withheld, the place to remit payment, and the information to be provided. If you employ more than 50 persons, you may be required to remit payment by electronic funds transfer.

Next, check your payroll records. In Texas, you cannot withhold more than 50% of your employee’s “disposable earnings” – which means the part that remains after mandatory deductions for social security, medicare, federal income taxes, union dues, nondiscretionary retirement contributions, and medical/hospitalization/disability insurance coverage for the employee and the employee’s children. If the Order/Notice is close to or exceeds that amount, seek guidance from your friendly neighborhood employment law attorney or another Human Resources professional.

As an employer, you can also deduct a $10 per month processing fee, in addition to the amount to be withheld as child support.

Withholding orders for child support have priority over any other garnishments, attachments, writs of execution or other judgments affecting the employee’s disposable earnings. If you have received multiple orders related to an employee’s wages, seek guidance.

Special rules also apply for withholding from an employee’s workers’ compensation benefits, severance pay, and any lump-sum payments (such as bonuses or payment in lieu of accrued leave). In these situations, you should also seek further guidance.

By:  Cynthia W. Veidt, cindy@lpvlaw.com

Monday, April 28, 2014

WHOSE BITCH IS IT ANYWAY?



We all love our pets, but what happens when you find a dog and then keep it as your own and another owner shows up?  What about a cat that was a gift from a significant other or spouse that later becomes an ex-significant other?  Who gets the pet?  How does the law treat pets in those circumstances?
 
 Pets – all animals owned by humans, in fact – are considered personal property or “chattel” as it is legally described.  Ownership is established the same as any personal property – by title, by ownership mark, or by a showing of ownership.  So what would be evidence of ownership?  A microchip and registration in your name, a tattoo, a particularly specific “ear notch”, a registered brand, or a registration that lists you as an owner and specifically identifies the animal by any of the proceeding.


 But what if both you and the “ex” are on the documentation of registration or ownership?  Unless you have a document or witnessed agreement to give you ownership, you each own ½.  What if you have paid for care and medical costs that exceed the value of the animal?  You might have an argument to receive either ½ of those costs or the other half of the animal as compensation, but to get there, you would have to go to court….


 The bottom line is, identify your animals with something permanent and specific such as a microchip and/or a tattoo.  If you own the animal with someone else, and they give up their ownership, document it with a signed document and have the registration of the animal changed to reflect the sole ownership.


 Otherwise, you might end up in court.


Blog By: Maura Phelan, Attorney

Wednesday, March 5, 2014

Employment Law Basics for Employers: Possible Legal Risks from Social Media



To date, Texas does not prohibit an employer from requiring an applicant or employee’s social media user name and password as a condition of employment. But you should be very cautious about asking for such information. Too much knowledge actually can be a dangerous thing.  For example:

·         An employer might be found vicariously liable for harassment, discrimination or retaliation if the employer knew or should have known about its employee’s offensive conduct but took no corrective action.  In these cases, simply having access to a supervisor’s social media profile – even when not used – might create a liability risk if that supervisor posts inappropriate comments about a subordinate’s sexual preferences or makes racist comments, even outside work. 

·         An employer could also be presumed to have knowledge of the information posted by an employee using social media, whether made accessible to the general public or not.  Posts or comments by others on an employee’s Facebook page regarding the employee’s medical condition, sexual orientation, pregnancy, or age might provide some factual basis to support a discrimination claim. 

·         Posts, comments, or photographs reflecting an employee’s use of drugs or alcohol and other reckless or violent activities (even during non-working hours), could lead to a negligent hiring or negligent supervision claim if that employee later injures someone while on the job.

·         An employee’s posts or comments complaining about workplace discrimination, accrued overtime, on-the-job injuries, or instant message/Twitter discussions with other employees about working conditions could also lead to claims that the employer has taken adverse action in violation of the Fair Labor Standards Act, National Labor Relations Act, Occupational Safety and Health Act or any other number of federal and state laws prohibiting retaliation for protected activity.

Lastly, an employer who engages in social media should be very cautious about the tone and content of any personal blogs, Facebook pages, Twitter posts and other content on social networking sites.  Recent news articles have shown the damage to a company’s reputation caused by an embarrassing “joke” when taken out of context, and defamation claims involving social media “publications” are likely to increase.


By: Cynthia W. Veidt

Friday, September 6, 2013

Employment Law Basics for Employers: How to Handle an Unemployment Claim

The Texas Workforce Commission (TWC) handles all unemployment claims. Every employee – even ones who quit – might be eligible to receive unemployment compensation depending on the circumstances. It is very important for an employer to document the facts leading to every employee’s separation from employment; try to obtain a resignation letter from each employee.

TWC’s claim investigation will focus on whether the employee was terminated for misconduct connected with their work or, alternatively, whether the employee had good cause connected with work for a voluntary resignation. For example, if an employee is being harassed at work, he or she would have “good cause” to quit. 

Some things that an employer should not do:

  • Fire an employee in the heat of the moment without warning. Unless a reasonable person would believe the conduct could result in immediate termination, you should provide the employee with reasonable notice and an opportunity to correct the violation before proceeding to termination.
  • Demand an employee’s resignation. Resignation under pressure from the employer can be considered an “involuntary work separation” that allows the employee to receive unemployment benefits.
  • Immediately accept an employee’s resignation in lieu of discipline, or reach a “mutual agreement” that the employee will resign. Similarly, this may be viewed as “involuntary work separation” under pressure. Ask the employee to provide you with a letter of resignation containing a definite date for his last day of employment, preferably at least two weeks in the future.
  • Accept an employee’s request to be “laid off.”  Reductions in force or “lay offs” are usually considered an involuntary work separation.
  • Ignore communications from the Texas Workforce Commission. Employers should respond to every notice of an unemployment claim within the deadline provided.
  • Fail to have HR documents and eye-witnesses available for hearings held by TWC. It is important to have proper evidence for TWC, rather than just “hearsay” or guess-work.
  • Change the reason for an employee’s separation from work. Remain consistent in your explanation about the events that led to the employee’s termination. Don’t rely on memory or make assumptions; check your records, speak to anyone who observed the events directly, and get your facts straight from the beginning.
  • Fail to contact an employee who does not show up for work. If an employee quits without notice, document your records by attempting to contact that employee to ask when he intends to come back to work. It also helps to have a policy in place describing the number of days an employee can be absent from work without contacting his direct supervisor (never a co-worker) before he will be considered to have voluntarily abandoned his job.

As always, when dealing with an unemployment claim, you may want to consult with an HR or employment law specialist early in the process to determine the best way to proceed.

Thursday, March 14, 2013

Texas Employment Law - Avoiding a Retaliation Claim



Retaliation is a common complaint by an employee – and one which employers frequently lose. It is possible for an employer to be guilty of retaliation, even when there was no underlying discrimination or harassment.

“Retaliation” means that an employer may not fire, demote, harass or otherwise adversely impact or retaliate against an employee for: (1) filing a charge of discrimination, (2) participating in a discrimination proceeding, or (3) otherwise opposing discrimination. Essentially, anything that would tend to have a “chilling effect” on an employee’s decision to file a complaint or participate in an investigation is considered “retaliation.”

An employer can help avoid a claim of retaliation by refraining from taking any adverse action or attempting to discourage an employee from the following types of actions:


  • filing an internal or external complaint of discrimination or harassment for himself or anyone else;
  • serving as a witness in an investigation or proceeding related to another person’s complaint of discrimination or harassment;
  • informing another employee of their right to file a complaint of discrimination, harassment or request for a reasonable accommodation;
  • encouraging another employee to file a complaint of discrimination or harassment.


However, retaliation claims do not make an employee “fire proof.” A court must still find that the employer acted in retaliation because of the employee’s protected action. If you find yourself in a situation where an employee has engaged in protected activity, but that employee has also engaged in conduct that merits disciplinary action, or you have a business reason to re-assign or terminate that employee (such as a reduction-in-force), you should thoroughly document the non-retaliatory reasons for your decision. If you must take action within a short period of time after the employee’s protected actions (up to three or six months), you should consult with an HR or employment law specialist to determine the best way to proceed.

By: Cynthia W. Veidt, Attorney