Answers Posted By Thad Harkins
You should seek a consultation with a lawyer near you geographically to review the contract, to see what remedies in court you may have for the breach. In Texas, the enforceability of contracts can be difficult (for example, an "offer letter" may not be considered a contract enforceable as such, but may give rise to other common law claims based on the reliance by the employee of the promises in the letter). If you are near San Antonio, feel free to contact my office, 210-527-0900, to meet with either me or my partner, Michael Latimer. There are many fine lawyers throughout Texas listed on the "pulldown" list on top of the MEL webpage, and there is another list on the webpage of the Texas Employment Lawyers Association, www.mytela.org.
answer to Employer terminated the employment contract before the contract was up, what should I do now? posted Dec 5, 2010 9:17 PM [EST]
answer to Employer terminated the employment contract before the contract was up, what should I do now? posted Dec 5, 2010 9:17 PM [EST]
You should definitely contact an attorney near you geographically, as even school districts are required to comply with the ADA, as well as Texas Labor Code Chapter 21 (similar to the federal law). There are some restrictions on leave under the FMLA that apply only to teachers, which are difficult with regard to leave at the end of any school term, though this may be intertwined with the ADA issues to be circumvented in some cases.
IF you are in or near San Antonio, feel free to e-mail me at tharkins@hldlaw.com, or contact my office, 210-527-0900. There are also many fine employment lawyers who represent employees listed in the Lawyers listing at the top of the MEL website, or you can find another list at www.mytela.org. />
If you are a member of a teacher organization, they can also help, and may defray some of the cost of any grievance or litigation expenses. Jay Brim and Mark Robinett at Brim & Arnett in Austin do a great deal of work for ATPE members statewide, for example.
answer to Not Provide An Accomodation posted Dec 5, 2010 9:11 PM [EST]
IF you are in or near San Antonio, feel free to e-mail me at tharkins@hldlaw.com, or contact my office, 210-527-0900. There are also many fine employment lawyers who represent employees listed in the Lawyers listing at the top of the MEL website, or you can find another list at www.mytela.org.
If you are a member of a teacher organization, they can also help, and may defray some of the cost of any grievance or litigation expenses. Jay Brim and Mark Robinett at Brim & Arnett in Austin do a great deal of work for ATPE members statewide, for example.
answer to Not Provide An Accomodation posted Dec 5, 2010 9:11 PM [EST]
You need to meet with an attorney close to you (in or near the city in which you live). There is some difficult law from the Texas Supreme Court (see link:
http://caselaw.findlaw.com/tx-supreme-court/1471941.html )
about when/whether you can file a suit for commissions/unpaid work if you've pursued the same claims unsuccessfully through the TWC process, and a determination needs to be made as to whether you're "stuck" with the TWC process (the law is unclear on how far you have to go with the TWC before you're stuck, or whether you can abandon it so there's not a "final" ruling on the TWC wage claim). As you only have 10 - 14 days to appeal the initial determination by the Wage Division, and only 30 days to appeal to a court of any "final" TWC ruling, you should get to an attorney before this time expires (as your options may be limited by whether you appeal to the hearing process). There is a list of Texas lawyers you can access on this site, or go to www.mytela.org for a list of Texas lawyers who might give you a consultation.
answer to Should I pursue my case with the Texas Workforce Commission or Small Claims Court? posted Dec 5, 2010 8:50 PM [EST]
http://caselaw.findlaw.com/tx-supreme-court/1471941.html )
about when/whether you can file a suit for commissions/unpaid work if you've pursued the same claims unsuccessfully through the TWC process, and a determination needs to be made as to whether you're "stuck" with the TWC process (the law is unclear on how far you have to go with the TWC before you're stuck, or whether you can abandon it so there's not a "final" ruling on the TWC wage claim). As you only have 10 - 14 days to appeal the initial determination by the Wage Division, and only 30 days to appeal to a court of any "final" TWC ruling, you should get to an attorney before this time expires (as your options may be limited by whether you appeal to the hearing process). There is a list of Texas lawyers you can access on this site, or go to www.mytela.org for a list of Texas lawyers who might give you a consultation.
answer to Should I pursue my case with the Texas Workforce Commission or Small Claims Court? posted Dec 5, 2010 8:50 PM [EST]
The only law that protects your husband for getting leave for family matters is the Family Medical Leave Act, which is currently only for his serious health condition of a family member's serious health condition. There are amendments proposed to extend this type of leave for parent/teacher conferences, and other parenting events, but not for birthdays, so unless there's some written policy that says they can NEVER reverse their approval for non-medical leave already granted, I'm afraid I agree with Marty all the way.
answer to My husbands boss .... posted Jun 14, 2010 8:17 PM [EST]
answer to My husbands boss .... posted Jun 14, 2010 8:17 PM [EST]
It appears you may have a valid age discrimination claim, and the laws provide that under certain circumstances, you can get out of the separation agreement under doctrines of "equitable estoppel" (that the employer lied about the job elimination or "lulled you" into not pursuing a claim), but this will require you to file a Charge of Discrimination with the EEOC or the TWC - Civil Rights Division. What you might try to do is go to the EEOC office that services your city, and let them evaluate the claim and they might accept your case, or ask the employer to mediate your discrimination charge.
Here's a link to the EEOC page on filing a charge:
http://www.eeoc.gov/employees/charge.cfm
There are EEOC offices in several Texas cities (Dallas, Houston, San Antonio and El Paso),
http://www.eeoc.gov/field/index.cfm
and you might want to at least go in for an interview, and they can help you assess whether you can show that when they let you go, they already knew they'd be filling your job again a month later (the employer will say they didn't have a need, but something happened soon after you left to cause a "new" need, and you'll have to prove this is not so, and it's just "pretext" for age discrimination).
There's another law, now part of the Age Discrimination in Employment Act, calledthe Older Worker's Benefit Protection Act (which requires the "21 days to review" and "7 days to revoke" a severance agreement that was probably in your separation agreement), which might also give the employer an argument that before you can pursue a lawsuit after filing a charge, you may have to "tender back" the severance pay you got. If the EEOC decides to take your case to court (this rarely, but sometimes, happens), they might not be bound by the agreement to not sue that you are now bound by (they weren't parties to the agreement), but you may need to get a private attorney to review the situation, and work with you in pursuing your claim both through the EEOC and into Court, if the evidence is good. There are several fine Texas employment lawyers listed in the "Lawyers" pull-down tab on the top of the www.myemploymentlawyer.com opening page, and you can also find lawyers who might meet with you at www.workplacefairness.org or www.mytela.org
answer to Can a signed separation and settlement agreement be voided if law broken? posted Jun 14, 2010 8:07 PM [EST]
Here's a link to the EEOC page on filing a charge:
http://www.eeoc.gov/employees/charge.cfm
There are EEOC offices in several Texas cities (Dallas, Houston, San Antonio and El Paso),
http://www.eeoc.gov/field/index.cfm
and you might want to at least go in for an interview, and they can help you assess whether you can show that when they let you go, they already knew they'd be filling your job again a month later (the employer will say they didn't have a need, but something happened soon after you left to cause a "new" need, and you'll have to prove this is not so, and it's just "pretext" for age discrimination).
There's another law, now part of the Age Discrimination in Employment Act, calledthe Older Worker's Benefit Protection Act (which requires the "21 days to review" and "7 days to revoke" a severance agreement that was probably in your separation agreement), which might also give the employer an argument that before you can pursue a lawsuit after filing a charge, you may have to "tender back" the severance pay you got. If the EEOC decides to take your case to court (this rarely, but sometimes, happens), they might not be bound by the agreement to not sue that you are now bound by (they weren't parties to the agreement), but you may need to get a private attorney to review the situation, and work with you in pursuing your claim both through the EEOC and into Court, if the evidence is good. There are several fine Texas employment lawyers listed in the "Lawyers" pull-down tab on the top of the www.myemploymentlawyer.com opening page, and you can also find lawyers who might meet with you at www.workplacefairness.org or www.mytela.org
answer to Can a signed separation and settlement agreement be voided if law broken? posted Jun 14, 2010 8:07 PM [EST]
You might bring a claim for the commissions as a breach of oral contract in court, or file a wage claim with the TWC wage division. Links to explaining this process and the form are at: http://www.twc.state.tx.us/ui/lablaw/wageclaim.pdf
http://www.twc.state.tx.us/ui/lablaw/ll1.pdf
Though the federal minimum wage and overtime laws also have an "anti-retaliation" provision, there's not any job protection for you under Texas law if you do file a claim under state law, so your employer could conceivably fire you if you bring either suit or a wage claim. Generally, the since your employment is "at will" without a written guarantee of continued employment, your employer can let you go unless there's a specific law that protects your job (like discrimination, FLSA retaliation, workers comp retaliation, etc.), even if it's unfair.
The TWC unemployment laws do provide that if your "hiring agreement" changes, you may have a right to get unemployment benefits if you quit because of a reduction in pay (the rule of thumb is that you get benefits if your pay is reduced at least 20- 25% by the employer's unilateral change in the compensation terms), but whether you are willing to give up the job for unemployment benefits (appx. $400/wk. max) until you find another job is really a decision you have to make if you quit over this.
You may want to get a lawyer in your city or area to meet with you, and evaluate whether the unpaid commission claim is worth pursuing and risking termination, or can give you tips in negotiating a written commission agreement to present to your employer, if your client base gives you any leverage to negotiate a higher % rate like the one you started with.
The
answer to Variable Comission without prior notice posted Jun 14, 2010 7:42 PM [EST]
http://www.twc.state.tx.us/ui/lablaw/ll1.pdf
Though the federal minimum wage and overtime laws also have an "anti-retaliation" provision, there's not any job protection for you under Texas law if you do file a claim under state law, so your employer could conceivably fire you if you bring either suit or a wage claim. Generally, the since your employment is "at will" without a written guarantee of continued employment, your employer can let you go unless there's a specific law that protects your job (like discrimination, FLSA retaliation, workers comp retaliation, etc.), even if it's unfair.
The TWC unemployment laws do provide that if your "hiring agreement" changes, you may have a right to get unemployment benefits if you quit because of a reduction in pay (the rule of thumb is that you get benefits if your pay is reduced at least 20- 25% by the employer's unilateral change in the compensation terms), but whether you are willing to give up the job for unemployment benefits (appx. $400/wk. max) until you find another job is really a decision you have to make if you quit over this.
You may want to get a lawyer in your city or area to meet with you, and evaluate whether the unpaid commission claim is worth pursuing and risking termination, or can give you tips in negotiating a written commission agreement to present to your employer, if your client base gives you any leverage to negotiate a higher % rate like the one you started with.
The
answer to Variable Comission without prior notice posted Jun 14, 2010 7:42 PM [EST]
I agree. Most employment contracts (especially with non-compete or non-solicitation provisions) have a "severability" paragraph, that provides that in the event of a breach of one section (i.e. your compensation structure), all the other provisions are still enforceable. You could sue for the unpaid commissions, or file a wage claim with the TWC for the unpaid amount, but the remedy of rescission of the contract is generally limited - though you might claim that there was a fraudulent promise that induced you to sign the agreement, or that the employer's "unclean hands" might give a court power to declare the contract or non-copete void, but these are case-specific, and the case law is complicated, and you really need to have a lawyer review the agreement and all the circumstances surrounding the event on the unpaid commission.
answer to If my employer keeps an order secret and dose not pay commission, is my employment contract nullifid posted Jun 14, 2010 7:23 PM [EST]
answer to If my employer keeps an order secret and dose not pay commission, is my employment contract nullifid posted Jun 14, 2010 7:23 PM [EST]
Texas contract law, and the law governing severance agreements for persons over 40 (which I presume is the case, since they gave 21 days to review, required by the Older Workers Benefit Protection Act) may both come into play. Generally once the offer is made, if accepted it becomes binding, under the federal statute. However, under state contract law, it can be rescinded for a number of reasons, two of which might apply in this case, off the top of my head - impossibility of performance, and omission of a material fact in the contract formation. I think if they rescinded before your signature was received, you may have a tough time, especially if they amended the contract to include new terms. I suggest you seek a consultation with one of the great lawyers in the DFW area listed on MEL links above ("LAWYERS"), or go to www.nela.org or www.telaonline.com and use their directories to find an experience employment lawyer.
answer to On what grounds can a pending severance offer be rescinded? posted Feb 5, 2010 10:11 PM [EST]
answer to On what grounds can a pending severance offer be rescinded? posted Feb 5, 2010 10:11 PM [EST]
Under Texas Labor Code Section 61.018, an employer can only garnish wages if they have a written agreement signed by the employee to do so. If they present him with one, and he refuses, they can fire him, but he should be able to get unemployment benefits, if it's any consolation. Many restaurants have employees sign a pay deduction form as part of their cash-management policies (mainly for when $$$ is short in a till, or any unauthorized expenses), so he may have already signed one.
If he is fired for refusing to sign one, or if he allows it and then wants to challenge it as improper while still employed, there may be a claim (though difficult) that the garnishment or proposed garnishment is illegal, as the statutory section requires that any garnishment by agreement must be for a "lawful" purpose. This claim is weaker if the employer has evidence he mismanaged his position (for example, by leaving a safe open or a door unlocked, or leaving too much money in a till during shifts, contrary to a written cash management/security policy). If he does want to challenge their action, he should consult a local employment attorney, who may find a "creative" application of this narrow statutory language to assert a legal claim - that the garnishment, or termination for refusing to sign an agreement to allow it, is contrary to the language of the statute, as making an employee pay a debt they do not owe is not for a "lawful purpose." I know of no case where this has ever been asserted, but it's worth at least seeing if any attorney would review it, if there is no specific cash control policy he's violated, but the robbery was merely an unforseeable act.
Look for an attorney to consult with in your area by going to the pulldown "LAWYERS" bar on this site, and type in TEXAS, or go to www.nela.org or www.telaonline.com. There are several fine lawyers throughout the state on these links.
answer to Can an employer garnish the wages of an employee who was working when a restaurant was robbed? posted Nov 9, 2009 8:51 PM [EST]
If he is fired for refusing to sign one, or if he allows it and then wants to challenge it as improper while still employed, there may be a claim (though difficult) that the garnishment or proposed garnishment is illegal, as the statutory section requires that any garnishment by agreement must be for a "lawful" purpose. This claim is weaker if the employer has evidence he mismanaged his position (for example, by leaving a safe open or a door unlocked, or leaving too much money in a till during shifts, contrary to a written cash management/security policy). If he does want to challenge their action, he should consult a local employment attorney, who may find a "creative" application of this narrow statutory language to assert a legal claim - that the garnishment, or termination for refusing to sign an agreement to allow it, is contrary to the language of the statute, as making an employee pay a debt they do not owe is not for a "lawful purpose." I know of no case where this has ever been asserted, but it's worth at least seeing if any attorney would review it, if there is no specific cash control policy he's violated, but the robbery was merely an unforseeable act.
Look for an attorney to consult with in your area by going to the pulldown "LAWYERS" bar on this site, and type in TEXAS, or go to www.nela.org or www.telaonline.com. There are several fine lawyers throughout the state on these links.
answer to Can an employer garnish the wages of an employee who was working when a restaurant was robbed? posted Nov 9, 2009 8:51 PM [EST]
Michelle -
I'm not sure whether you've got enough to make a discrimination claim, but assume you are entitled to unemployment benefits, as the employer has called it a layoff, so you should file for unemployment, however minimal the benefit may be. If the employer challenges your unemployment, saying that you were fired for failing to meet performance standards, do try to get to a Houston attorney to evaluate your case BEFORE the "Appeal Tribunal" stage of the TWC unemployment hearing process starts, as you may have a chance for that attorney to get valuable information on why you, and not the hispanic M and black F weren't similarly disciplined for the unachievable goals set. Though the discrimination claim may be tough, the attorney in Houston that you consult with may be able to evaluate for other claims under state law (though there is no breach of contract claim, there may be promises, either oral or in the employee handbook about work expectations, and about freedom from retaliation (other than the statutory claims based on gender/race/national origin/disability) which might give you additional legal theories you could assert).
The basics of whether there may be discrimination can be found at www.workplacefairness.org. Not all unfair treatment (discrimination in the broadest sense) fits within the statutory bases for discrimination, and reverse discrimination (being anglo, or not having previously filed a discrimination claim) can be a difficult claim factually.
Several good Houston employment lawyers are listed on this website (click on "LAWYERS" at the top of the page, and type in TEXAS to get the full listings) and also at www.telaonline.com and www.nela.org. You can also file a charge of discrimination with the EEOC through filling out a questionnaire on their website, www.eeoc.gov, or by the link on that website to go in to their Houston office. Margie Harris, Andrew Golub and Trang Tran, who are listed on this MEL list and on the other two above, are great lawyers, as are the others you will find on all 3 lists.
answer to Do I have a contructive discharge, retaliation, discrimination case? posted Nov 9, 2009 7:50 PM [EST]
I'm not sure whether you've got enough to make a discrimination claim, but assume you are entitled to unemployment benefits, as the employer has called it a layoff, so you should file for unemployment, however minimal the benefit may be. If the employer challenges your unemployment, saying that you were fired for failing to meet performance standards, do try to get to a Houston attorney to evaluate your case BEFORE the "Appeal Tribunal" stage of the TWC unemployment hearing process starts, as you may have a chance for that attorney to get valuable information on why you, and not the hispanic M and black F weren't similarly disciplined for the unachievable goals set. Though the discrimination claim may be tough, the attorney in Houston that you consult with may be able to evaluate for other claims under state law (though there is no breach of contract claim, there may be promises, either oral or in the employee handbook about work expectations, and about freedom from retaliation (other than the statutory claims based on gender/race/national origin/disability) which might give you additional legal theories you could assert).
The basics of whether there may be discrimination can be found at www.workplacefairness.org. Not all unfair treatment (discrimination in the broadest sense) fits within the statutory bases for discrimination, and reverse discrimination (being anglo, or not having previously filed a discrimination claim) can be a difficult claim factually.
Several good Houston employment lawyers are listed on this website (click on "LAWYERS" at the top of the page, and type in TEXAS to get the full listings) and also at www.telaonline.com and www.nela.org. You can also file a charge of discrimination with the EEOC through filling out a questionnaire on their website, www.eeoc.gov, or by the link on that website to go in to their Houston office. Margie Harris, Andrew Golub and Trang Tran, who are listed on this MEL list and on the other two above, are great lawyers, as are the others you will find on all 3 lists.
answer to Do I have a contructive discharge, retaliation, discrimination case? posted Nov 9, 2009 7:50 PM [EST]
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