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

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

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