American Registry LLC, a respected recognition organization, has named Fort Worth civil litigation attorney James L. Williams to The Registry™ of Business and Professional Excellence.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Fort Worth Civil Litigation Attorney James L. Williams has been awarded a “Superb” Rating by AVVO (aperfect score of 10.0 out of 10.0), a Top Attorney rating calculated using a mathematical model that evaluates relevant data in an attorney’s profile, including experience, disciplinary history, professional achievements, client reviews, peer reviews and industry recognition .The rating system periodically collects background data from multiple sources, including state bar associations, court records, websites, and other information, and is considered a premier consumer dedicated attorney rating system.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
“Justice will not be served until those who are unaffected are as outraged as those who are.”
― Benjamin Franklin
“Right is right, even if everyone is against it, and wrong is wrong, even if everyone is for it.”
― William Penn
“It is reasonable that everyone who asks justice should do justice”
― Thomas Jefferson
“Someday, the realm of liberty and justice will encompass the planet. Freedom is not just the birthright of the few, it is the God-given right of all His children, in every country. It won’t come by conquest. It will come, because freedom is right and freedom works. It will come, because cooperation and good will among free people will carry the day.”
― Ronald Reagan, The Quest for Peace, the Cause of Freedom
“A man who really fights for justice must lead a private, not a public, life if he is to survive for even a short time.”
― Socrates, The Apology
Any discussion of how pain and suffering fit into God’s scheme ultimately leads back to the cross. ”
― Philip Yancey
“Let a crown be placed thereon, by which the world may know, that so far as we approve of monarcy, that in America the law is King. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.”
― Thomas Paine
“In questions of power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution.”
― Thomas Jefferson
“Today, no less than five Supreme Court justices are on record, either through their opinions or speeches (or both), that they will consult foreign law and foreign-court rulings for guidance in certain circumstances. Of course, policymakers are free to consult whatever they want, but not justices. They’re limited to the Constitution and the law.”
― Mark R. Levin
“Do not follow the crowd in doing wrong. . . do not pervert justice by siding with the crowd.”
― Exodus 23 2 NIVHoly Bible
“If there is any society among robbers and murderers, they must at least. . . .abstain
from robbing and murdering one another. So beneficence is less essential than justice is to the existence of society; a lack of beneficence will make a society uncomfortable, but the prevalence of injustice will utterly destroy it.”
― Adam Smith, The Theory of Moral Sentiments
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
CHAPTER 15. MONOPOLIES, TRUSTS AND CONSPIRACIES IN RESTRAINT OF TRADE
SUBCHAPTER E. COVENANTS NOT TO COMPETE
Sec. 15.50. CRITERIA FOR ENFORCEABILITY OF COVENANTS NOT TO COMPETE. (a) Notwithstanding Section 15.05 of this code, and subject to any applicable provision of Subsection (b), a covenant not to compete is enforceable if it is ancillary to or part of an otherwise enforceable agreement at the time the agreement is made to the extent that it contains limitations as to time, geographical area, and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary to protect the goodwill or other business interest of the promisee.
(b) A covenant not to compete relating to the practice of medicine is enforceable against a person licensed as a physician by the Texas Medical Board if such covenant complies with the following requirements:
(1) the covenant must:
(A) not deny the physician access to a list of his patients whom he had seen or treated within one year of termination of the contract or employment;
(B) provide access to medical records of the physician’s patients upon authorization of the patient and any copies of medical records for a reasonable fee as established by the Texas Medical Board under Section 159.008, Occupations Code; and
(C) provide that any access to a list of patients or to patients’ medical records after termination of the contract or employment shall not require such list or records to be provided in a format different than that by which such records are maintained except by mutual consent of the parties to the contract;
(2) the covenant must provide for a buy out of the covenant by the physician at a reasonable price or, at the option of either party, as determined by a mutually agreed upon arbitrator or, in the case of an inability to agree, an arbitrator of the court whose decision shall be binding on the parties; and
(3) the covenant must provide that the physician will not be prohibited from providing continuing care and treatment to a specific patient or patients during the course of an acute illness even after the contract or employment has been terminated.
(c) Subsection (b) does not apply to a physician’s business ownership interest in a licensed hospital or licensed ambulatory surgical center.
Added by Acts 1989, 71st Leg., ch. 1193, Sec. 1, eff. Aug. 28, 1989. Amended by Acts 1993, 73rd Leg., ch. 965, Sec. 1, eff. Sept. 1, 1993; Acts 1999, 76th Leg., ch. 1574, Sec. 1, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1420, Sec. 14.729, eff. Sept. 1, 2001.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 971 (H.B. 3623), Sec. 1, eff. September 1, 2009.
Sec. 15.51. PROCEDURES AND REMEDIES IN ACTIONS TO ENFORCE COVENANTS NOT TO COMPETE. (a) Except as provided in Subsection (c) of this section, a court may award the promisee under a covenant not to compete damages, injunctive relief, or both damages and injunctive relief for a breach by the promisor of the covenant.
(b) If the primary purpose of the agreement to which the covenant is ancillary is to obligate the promisor to render personal services, for a term or at will, the promisee has the burden of establishing that the covenant meets the criteria specified by Section 15.50 of this code. If the agreement has a different primary purpose, the promisor has the burden of establishing that the covenant does not meet those criteria. For the purposes of this subsection, the “burden of establishing” a fact means the burden of persuading the triers of fact that the existence of the fact is more probable than its nonexistence.
(c) If the covenant is found to be ancillary to or part of an otherwise enforceable agreement but contains limitations as to time, geographical area, or scope of activity to be restrained that are not reasonable and impose a greater restraint than is necessary to protect the goodwill or other business interest of the promisee, the court shall reform the covenant to the extent necessary to cause the limitations contained in the covenant as to time, geographical area, and scope of activity to be restrained to be reasonable and to impose a restraint that is not greater than necessary to protect the goodwill or other business interest of the promisee and enforce the covenant as reformed, except that the court may not award the promisee damages for a breach of the covenant before its reformation and the relief granted to the promisee shall be limited to injunctive relief. If the primary purpose of the agreement to which the covenant is ancillary is to obligate the promisor to render personal services, the promisor establishes that the promisee knew at the time of the execution of the agreement that the covenant did not contain limitations as to time, geographical area, and scope of activity to be restrained that were reasonable and the limitations imposed a greater restraint than necessary to protect the goodwill or other business interest of the promisee, and the promisee sought to enforce the covenant to a greater extent than was necessary to protect the goodwill or other business interest of the promisee, the court may award the promisor the costs, including reasonable attorney’s fees, actually and reasonably incurred by the promisor in defending the action to enforce the covenant.
Added by Acts 1989, 71st Leg., ch. 1193, Sec. 1, eff. Aug. 28, 1989. Amended by Acts 1993, 73rd Leg., ch. 965, Sec. 2, eff. Sept. 1, 1993.
Sec. 15.52. PREEMPTION OF OTHER LAW. The criteria for enforceability of a covenant not to compete provided by Section 15.50 of this code and the procedures and remedies in an action to enforce a covenant not to compete provided by Section 15.51 of this code are exclusive and preempt any other criteria for enforceability of a covenant not to compete or procedures and remedies in an action to enforce a covenant not to compete under common law or otherwise.
Added by Acts 1993, 73rd Leg., ch. 965, Sec. 3, eff. Sept. 1, 1993.
As always, it is important to contact a knowledgeable and experienced Texas employment law defense attorney to help you understand your rights as an Employer. James L. Williams of Williams, McClure & Parmelee in Fort Worth, Texas is a veteran employment law defense attorney who protects the rights of businesses in Texas employment law cases, with respect to both state and federal law.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
(The following version of Form C-8 is identical in content, but not in format, to the Form C-8 adopted by the Texas Workforce Commission and published in the Texas Register as part of the Payday Rules. That test may be found on the Internet in PDF format athttp://www.texasworkforce.org/ui/tax/forms/c8.pdf (PDF). Employers may also request a copy in printed form by asking for Form C-8 from “Texas Workforce Commission, Tax Department, 101 E. 15th Street, Austin, Texas, 78778”.)
EMPLOYMENT STATUS – A COMPARATIVE APPROACH
Under the common law test, a worker is an employee if the purchaser of that worker’s service has the right to direct or control the worker, both as to the final results and as to the details of when, where, and how the work is done. Control need not actually be exercised; rather, if the service recipient has the right to control, employment may be shown.
Depending upon the type of business and the services performed, not all of the twenty common law factors may apply. In addition, the weight assigned to a specific factor may vary depending upon the facts of the case. If an employment relationship exists, it does not matter that the employee is called something different, such as: agent, contract labor, subcontractor, or independent contractor.
1. INSTRUCTIONS:
11. ORAL OR WRITTEN REPORTS:
An Employee receives instructions about when, where and how the work is to be performed. An Independent Contractor does the job his or her own way with few, if any, instructions as to the details or methods of the work.
An Employee may be required to submit regular oral or written reports about the work in progress. An Independent Contractor is usually not required to submit regular oral or written reports about the work in progress.
2. TRAINING:
12.PAYMENT BY THE HOUR, WEEK, OR MONTH:
Employees are often trained by a more experienced employee or are required to attend meetings or take training courses. An Independent Contractor uses his or her own methods and thus need not receive training from the purchaser of those services.
An Employee is typically paid by the employer in regular amounts at stated intervals, such as by the hour or week. An Independent Contractor is normally paid by the job, either a negotiated flat rate or upon submission of a bid.
3. INTEGRATION:
13. PAYMENT OF BUSINESS & TRAVEL EXPENSE:
Services of an Employee are usually merged into the firm’s overall operation; the firm’s success depends on those Employee services. An Independent Contractor’s services are usually separate from the client’s business and are not integrated or merged into it.
An Employee’s business and travel expenses are either paid directly or reimbursed by the employer. Independent Contractors normally pay all of their own business and travel expenses without reimbursement.
4. SERVICES RENDERED PERSONALLY:
14. FURNISHING TOOLS & EQUIPMENT:
An Employee’s services must be rendered personally; Employees do not hire their own substitutes or delegate work to them. A true Independent Contractor is able to assign another to do the job in his or her place and need not perform services personally.
Employees are furnished all necessary tools, materials, and equipment by their employer. An Independent Contractor ordinarily provides all of the tools and equipment necessary to complete the job.
5. HIRING, SUPERVISING & PAYING HELPERS:
15. SIGNIFICANT INVESTMENT:
An Employee may act as a foreman for the employer but, if so, helpers are paid with the employer’s funds. Independent Contractors select, hire, pay, and supervise any helpers used and are responsible for the results of the helpers’ labor.
An Employee generally has little or no investment in the business. Instead, an Employee is economically dependent on the employer. True Independent Contractors usually have a substantial financial investment in their independent business.
6. CONTINUING RELATIONSHIP:
16. REALIZE PROFIT OR LOSS:
An Employee often continues to work for the same employer month after month or year after year. An Independent Contractor is usually hired to do one job of limited or indefinite duration and has no expectation of continuing work.
An Employee does not ordinarily realize a profit or loss in the business. Rather, Employees are paid for services rendered. An Independent Contractor can either realize a profit or suffer a loss depending on the management of expenses and revenues.
7. SET HOURS OF WORK:
17. WORKING FOR MORE THAN ONE FIRM AT A TIME:
An Employee may work “on call” or during hours and days as set by the employer. A true Independent Contractor is the master of his or her own time and works the days and hours he or she chooses.
An Employee ordinarily works for one employer at a time and may be prohibited from joining a competitor. An Independent Contractor often works for more than one client or firm at the same time and is not subject to a non-competition rule.
8. FULL TIME REQUIRED:
18. MAKING SERVICE AVAILABLE TO THE PUBLIC:
An Employee ordinarily devotes full-time service to the employer, or the employer may have a priority on the Employee’s time. A true Independent Contractor cannot be required to devote full-time service to one firm exclusively.
An Employee does not make his or her services available to the public except through the employer’s company. An Independent Contractor may advertise, carry business cards, hang out a shingle, or hold a separate business license.
9. LOCATION WHERE SERVICES PERFORMED:
19. RIGHT TO DISCHARGE WITHOUT LIABILITY:
Employment is indicated if the employer has the right to mandate where services are performed. Independent Contractors ordinarily work where they choose. The workplace may be away from the client’s premises.
An Employee can be discharged at any time without liability on the employer’s part. If the work meets the contract terms, an Independent Contractor cannot be fired without liability for breach of contract.
10. ORDER OR SEQUENCE SET:
20. RIGHT TO QUIT WITHOUT LIABILITY:
An Employee performs services in the order or sequence set by the employer. This shows control by the employer. A true Independent Contractor is concerned only with the finished product and sets his or her own order or sequence of work.
An Employee may quit work at any time without liability on the Employee’s part. An Independent Contractor is legally responsible for job completion and, on quitting, becomes liable for breach of contract.
C-8(0406)
(Source: 40 T.A.C. § 821.5, adopted to be effective June 1, 1998, as published in the Texas Register, May 29, 1998, 23 TexReg 5732.)
As always, it is important to contact a knowledgeable and experienced Texas employment law defense attorney to help you understand your rights as an Employer. James L. Williams of Williams, McClure & Parmelee in Fort Worth, Texas is a veteran employment law defense attorney who protects the rights of businesses in Texas employment law cases, with respect to both state and federal law.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Sec. 31.001. PASSAGE OF TITLE. A judgment for the conveyance of real property or the delivery of personal property may pass title to the property without additional action by the party against whom the judgment is rendered.
Sec. 31.002. COLLECTION OF JUDGMENT THROUGH COURT PROCEEDING. (a) A judgment creditor is entitled to aid from a court of appropriate jurisdiction through injunction or other means in order to reach property to obtain satisfaction on the judgment if the judgment debtor owns property, including present or future rights to property, that:
(1) cannot readily be attached or levied on by ordinary legal process; and
(2) is not exempt from attachment, execution, or seizure for the satisfaction of liabilities.
(b) The court may:
(1) order the judgment debtor to turn over nonexempt property that is in the debtor’s possession or is subject to the debtor’s control, together with all documents or records related to the property, to a designated sheriff or constable for execution;
(2) otherwise apply the property to the satisfaction of the judgment; or
(3) appoint a receiver with the authority to take possession of the nonexempt property, sell it, and pay the proceeds to the judgment creditor to the extent required to satisfy the judgment.
(c) The court may enforce the order by contempt proceedings or by other appropriate means in the event of refusal or disobedience.
(d) The judgment creditor may move for the court’s assistance under this section in the same proceeding in which the judgment is rendered or in an independent proceeding.
(e) The judgment creditor is entitled to recover reasonable costs, including attorney’s fees.
(f) A court may not enter or enforce an order under this section that requires the turnover of the proceeds of, or the disbursement of, property exempt under any statute, including Section 42.0021, Property Code. This subsection does not apply to the enforcement of a child support obligation or a judgment for past due child support.
(g) With respect to turnover of property held by a financial institution in the name of or on behalf of the judgment debtor as customer of the financial institution, the rights of a receiver appointed under Subsection (b)(3) do not attach until the financial institution receives service of a certified copy of the order of receivership in the manner specified by Section 59.008, Finance Code.
(h) A court may enter or enforce an order under this section that requires the turnover of nonexempt property without identifying in the order the specific property subject to turnover.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1989, 71st Leg., ch. 1015, Sec. 1, eff. June 15, 1989; Acts 1999, 76th Leg., ch. 344, Sec. 7.002, eff. Sept. 1, 1999.
Amended by:
Acts 2005, 79th Leg., Ch. 52 (H.B. 729), Sec. 1, eff. May 17, 2005.
Sec. 31.0025. AUTHORITY OF COURT TO ORDER TURNOVER OF WAGES. (a) Notwithstanding any other law, a court may not, at any time before a judgment debtor is paid wages for personal services performed by the debtor, enter or enforce an order that requires the debtor or any other person to turn over the wages for the satisfaction of the judgment.
(b) This section applies to wages in any form, including paycheck, cash, or property.
(c) This section does not apply to the enforcement of a child support obligation or a judgment for past due child support.
Added by Acts 1991, 72nd Leg., ch. 671, Sec. 1, eff. Aug. 26, 1991.
Sec. 31.003. JUDGMENT AGAINST PARTNERSHIP. If a suit is against several partners who are jointly indebted under a contract and citation has been served on at least one but not all of the partners, the court may render judgment against the partnership and against the partners who were actually served, but may not award a personal judgment or execution against any partner who was not served.
Sec. 31.004. EFFECT OF ADJUDICATION IN LOWER TRIAL COURT. (a) A judgment or a determination of fact or law in a proceeding in a lower trial court is not res judicata and is not a basis for estoppel by judgment in a proceeding in a district court, except that a judgment rendered in a lower trial court is binding on the parties thereto as to recovery or denial of recovery.
(b) This section does not apply to a judgment in probate, guardianship, mental health , or other matter in which a lower trial court has exclusive subject matter jurisdiction on a basis other than the amount in controversy.
(c) For the purposes of this section, a “lower trial court” is a small claims court, a justice of the peace court, a county court, or a statutory county court.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 167, Sec. 3.07(a), eff. Sept. 1, 1987.
Sec. 31.005. EFFECT OF ADJUDICATION IN SMALL CLAIMS OR JUSTICE OF THE PEACE COURT. A judgment or a determination of fact or law in a proceeding in small claims court or justice of the peace court is not res judicata and does not constitute a basis for estoppel by judgment in a proceeding in a county court or statutory county court, except that the judgment rendered is binding on the parties thereto as to recovery or denial of recovery.
Sec. 31.006. REVIVAL OF JUDGMENT. A dormant judgment may be revived by scire facias or by an action of debt brought not later than the second anniversary of the date that the judgment becomes dormant.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1995, 74th Leg., ch. 935, Sec. 1, eff. Sept. 1, 1995.
Sec. 31.007. PARTIES RESPONSIBLE FOR ACCOUNTING OF OWN COSTS. (a) Each party to a suit shall be responsible for accurately recording all costs and fees incurred during the course of a lawsuit, if the judgment is to provide for the adjudication of such costs. If the judgment provides that costs are to be borne by the party by whom such costs were incurred, it shall not be necessary for any of the parties to present a record of court costs to the court in connection with the entry of a judgment.
(b) A judge of any court may include in any order or judgment all costs, including the following:
(1) fees of the clerk and service fees due the county;
(2) fees of the court reporter for the original of stenographic transcripts necessarily obtained for use in the suit;
(3) masters, interpreters, and guardians ad litem appointed pursuant to these rules and state statutes; and
(4) such other costs and fees as may be permitted by these rules and state statutes.
Added by Acts 1987, 70th Leg., ch. 663, Sec. 3, eff. Sept. 1, 1987.
Sec. 31.008. PAYMENT OF UNCLAIMED JUDGMENT. (a) A judgment debtor may pay to the court that rendered the judgment the amount under the judgment owed to a judgment creditor whose location is unknown to the judgment debtor if the judgment debtor complies with Subsections (b) and (c). The payment must be made without offset or reduction for any claims of the judgment debtor. The judgment debtor shall prepare a recordable release of the judgment. The judge or clerk of the court shall execute the release of the judgment on behalf of the creditor and issue the release to the debtor. The release shall recite the cause number, the court, the parties, the date of judgment, the amount of judgment, the amount paid into the court, and the date of the release.
(b) Before being entitled to pay a judgment to a court under Subsection (a), the judgment debtor shall send a letter notifying the judgment creditor of the judgment, by registered or certified mail, return receipt requested, to:
(1) the judgment creditor’s last known address;
(2) the address appearing in the judgment creditor’s pleadings or other court record, if different from the creditor’s last known address;
(3) the address of the judgment creditor’s last attorney, as shown in the creditor’s pleadings or other court record; and
(4) the address of the judgment creditor’s last attorney, as shown in the records of the State Bar of Texas, if that address is different from the address shown in the creditor’s pleadings or other court record.
(c) If the judgment creditor does not respond to a notice under Subsection (b) on or before the 15th day after the date on which the notice was sent, the judgment debtor may file an affidavit with the court stating that the judgment debtor has provided the required notice, that the judgment creditor has not responded to the notice, and that the location of the judgment creditor is not known to the judgment debtor.
(d) The court shall hold the amount paid to it by the judgment debtor under Subsection (a) and interest earned on that amount in trust for the judgment creditor.
(e) The clerk of the court shall deposit the trust funds and any interest earned by the funds in the clerk’s trust fund account. The clerk shall pay the funds and any interest earned by the funds to the judgment creditor or to the successors to the rights of the judgment creditor. The clerk may presume that the funds are payable to the judgment creditor unless the clerk is furnished with a written assignment of the judgment.
(f) Funds held in the clerk’s trust fund account in accordance with this section are subject to escheat under Chapter 72, Property Code.
(g) If the judgment debtor complies with Subsections (b) and (c) and the judgment creditor refuses to accept payment of the amount under the judgment or accepts payment under the judgment and refuses to execute a release of judgment, the court shall set the matter for hearing on a party’s motion or on the court’s own motion to determine whether or not a release should be filed. On notice and hearing the court may direct the judgment debtor to prepare and file a recordable release of the judgment with the clerk of the court if the court finds that:
(1) the amount under the judgment has been paid into the registry of the court; or
(2) the judgment creditor has accepted payment under the judgment and refused to execute a release of judgment.
(h) In this section:
(1) “Judgment creditor” means a party in whose favor a judgment has been rendered, whether a plaintiff, counterclaimant, cross-claimant, third party plaintiff, or other judgment creditor.
(2) “Judgment debtor” means a party against whom a judgment is rendered.
Added by Acts 1991, 72nd Leg., ch. 730, Sec. 1, eff. Sept. 1, 1991. Amended by Acts 1993, 73rd Leg., ch. 163, Sec. 1, eff. Aug. 30, 1993; Acts 2001, 77th Leg., ch. 656, Sec. 1, eff. Sept. 1, 2001.
Sec. 31.010. TURNOVER BY FINANCIAL INSTITUTION. (a) A financial institution that receives a request to turn over assets or financial information of a judgment debtor to a judgment creditor or a receiver under a turnover order or receivership under Section 31.002 shall be provided and may rely on:
(1) a certified copy of the order or injunction of the court; or
(2) a certified copy of the order of appointment of a receiver under Section 64.001, including a certified copy of:
(A) any document establishing the qualification of the receiver under Section 64.021;
(B) the sworn affidavit under Section 64.022; and
(C) the bond under Section 64.023.
(b) A financial institution that complies with this section is not liable for compliance with a court order, injunction, or receivership authorized by Section 31.002 to:
(1) the judgment debtor;
(2) a party claiming through the judgment debtor;
(3) a co-depositor with the judgment debtor; or
(4) a co-borrower with the judgment debtor.
(c) A financial institution that complies with this section is entitled to recover reasonable costs, including copying costs, research costs, and, if there is a contest, reasonable attorney’s fees.
(d) In this section, “financial institution” means a state or national bank, state or federal savings and loan association, state or federal savings bank, state or federal credit union, foreign bank, foreign bank agency, or trust company.
Added by Acts 1999, 76th Leg., ch. 892, Sec. 1, eff. Sept. 1, 1999.
As always, it is important to contact a knowledgeable and experienced Texas collections attorney to help you understand your rights as a Creditor in a Texas collections case. James L. Williams of Williams, McClure & Parmelee in Fort Worth, Texas is a veteran commercial litigation attorney who protects the rights of businesses in Texas commercial litigation and collections cases.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
In a Texas premises-liability case, a landowner is liable to employees of an independent contractor only for claims arising from a concealed, pre-existing defect rather than from the contractor’s work. Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 215 (Tex. 2008). “With respect to existing defects, an owner or occupier has a duty to inspect the premises and warn of concealed hazards the owner knows or should have known about.” Id. (quoting Shell Oil Co. v. Khan, 138 S.W.3d 288, 295 (Tex. 2004)).
“Premises Liability” refers to accidents that occur due to the negligent maintenance, operation or design of a property owned by someone other than the accident victim. This includes claims against a landlord on behalf of a tenant or against the landowner for injuries suffered by an individual who was lawfully on the property.
The Texas Legislature has waived sovereign immunity for personal injury claims arising from a premise defect. Tex. Civ. Prac. & Rem. Code § 101.021. Former section 101.022 of the Texas Civil Practices and Remedies Code[2] applied different duties of care to a suit depending on whether the condition was a premise defect or a special defect:
(a) If a claim arises from a premise defect, the governmental unit owes to the claimant only the duty that a private person owes
to a licensee on private property, unless the claimant pays for the use of the premises.
(b) The limitation of duty in this section does not apply to the duty to warn of special defects such as excavations or obstructions
on highways, roads, or streets or to the duty to warn of the absence, condition, or malfunction of traffic signs, signals, or warning
devices as is required by Section 101.060.
Act of May 17, 1985, 69th Leg., R.S., ch. 959, 1985 Tex. Gen. Laws 3242, 3303 (amended 2005) (current version at Tex. Civ.Prac. & Rem. Code § 101.022) (hereinafter § 101.022). If a claim involves a premise defect under section (a), a licensee standard applies. Tex. Civ Prac. & Rem. Code § 101.022(a); see also State Dep’t of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). Under a licensee standard, a plaintiff must prove the governmental unit had actual knowledge of a condition that created an unreasonable risk of harm, and also that the licensee did not have actual knowledge of that same
condition. Payne, 838 S.W.2d at 237. But if a claim involves a special defect under section (b), a more lenient invitee standard applies. Tex. Civ. Prac. & Rem. Code § 101.022(b). Under an invitee standard, the plaintiff need only prove that the governmental unit should have known of a condition that created an unreasonable risk of harm. Payne, 838 S.W.2d at 237; see also State Dep’t of Highways & Pub. Transp. v. Kitchen, 867 S.W.2d 784, 786 (Tex. 1993) (per curiam) (“Absent a finding that the State knew of the dangerous condition prior to the accident, it is not liable to plaintiffs unless the condition was a special
defect.”). Whether a condition is a premise defect or special defect is a question of law, which we review de novo. Payne, 838 S.W.2d at 238.
The Civil Practices and Remedies Code does not define exactly what a“special defect” is,but does give guidance by likening special defects to
“excavations or obstructions.” See Tex. Civ. Prac. & Rem. Code § 101.022(b)
The term “Premises Liability” encompasses a wide range of events that cause injury and may give rise to liability. For example, a slip and fall due to a wet or defective floor may be actionable against a landowner or a landlord. Other examples include claims for inadequate security, lighting or the failure to properly maintain railings, porches or stairs. These are examples of premises liability actions. Each set of facts giving rise to an injury on a premises must be individually evaluated.
In Texas, a premises owner does not guarantee the safety of its customers or employees. Consequently, an employee is not automatically entitled to
recover for his injuries merely because the injury occurred on his employer’s property.
To prevail on a premises-liability claim, a Plainiff must prove four essential elements:
(1) Actual or constructive knowledge of a condition on the premises by the
owner or occupier;
(2) That the condition posed an unreasonable risk of harm;
(3) That the owner or occupier did not exercise reasonable care to reduce or eliminate the risk; and
(4) That the owner or occupier’s failure to use such care proximately caused the plaintiff’s injury.
These four elements are typically referred to as: (1) notice; (2) unreasonably dangerous condition; (3) failure to exercise ordinary care; and (4) proximate cause.
As always, it is important to contact a knowledgeable and experienced Texas insurance defense attorney to help you understand your rights as a Defendant in a premises liability case. James L. Williams of Williams, McClure & Parmelee in Fort Worth, Texas is a veteran insurance defense attorney who protects the rights of insurance carriers and businesses in Texas premises liability cases.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Texas workers’ compensation insurance coverage provides covered employees with income and medical benefits if they sustain a work-related injury or illness. Except as otherwise provided by law; Texas private employers can choose whether or not to provide workers’ compensation insurance coverage for their employees. Except in cases of gross negligence or an intentional act or omission of the employer, workers’ compensation insurance limits an employer’s liability if an employee brings suit against the employer for damages. Certain building or construction employers who contract with governmental entities are required to provide workers’ compensation coverage for each employee working on the public project. Some clients may also require their contractors to have workers’ compensation insurance. Providing Workers’ Compensation Insurance If employers choose to provide workers’ compensation, they must do so in one of the following ways:
• purchase a workers’ compensation insurance policy from an insurance company licensed by the Texas Department of Insurance (TDI) to sell the coverage in Texas; • be certified by the Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC) to self-insure workers’ compensation claims; or
• join a self-insurance group that has received a certificate of approval from the TDI. Note: Political subdivisions may self-insure, buy coverage from insurance companies, or enter into inter-local agreements with other political subdivisions that self-insure.
EMPLOYER RIGHTS
Covered employers have the following rights:
• the right to contest the compensability of a workers’ compensation claim if the insurance carrier accepts liability for payment of benefits;
• the right to be notified of a proposal to settle a claim or of any administrative or judicial proceeding related to resolution of a claim (after making a written request to the insurance carrier);
• the right to attend dispute resolution proceedings related to an employee’s claim and present relevant evidence about the disputed issues; Employer Rights and Responsibilities Information for Employers from the Division of Workers’ Compensation
• the right to report suspected fraud to the TDI-DWC or to the insurance carrier;
• the right to contest the failure of the insurance carrier to provide required accident prevention services; and
• the right to receive return-to-work coordination services as necessary to facilitate an employee’s return to employment.
To dispute a workers’ compensation claim, an employer may file the DWC Form-004, and the DWC Form-045, Request to Schedule, Reschedule or Cancel a Benefit Review Conference (BRC), which may be obtained from the TDI website at http://www.tdi.texas.gov/forms/ form20employer.html or by calling 1-800-252-7031. Non-Reimbursable Employer Payments An employer is not entitled to and cannot seek reimbursement from the employee or insurance carrier if after a work-related injury or illness they voluntarily:
• continue to pay the injured employee’s salary continuation; or
• pay the injured employee salary supplementation to supplement income benfits paid by the insurance carrier. Employer Voluntary Payments of Benefits
An employer may voluntarily pay income or medical benefits to an employee during a period in which the insurance carrier has:
• contested compensability of the injury;
• contested liability for the injury; or
• has not completed its initial investigation of the injury. Note: an employer is only allowed to pay benefits in this situation for the first two weeks after the injury. For reimbursement, the employer is required to timely report the injury to the insurance carrier and to let the insurance carrier know, within 7 days of beginning For further assistance, call 1-800-252-7031 or visit http://www.tdi.texas.gov/wc/employer/index.html
This publication is a summary and is presented for informational purposes only. It is not a substitute for the statute and TDI-DWC rules. For questions about TDI-DWC rules, call Customer Assistance at 1-800-252-7031. CS05-017F(10-13)
As always, it is important to contact a knowledgeable and experienced Texas workers’ compensation defense attorney to help you understand your rights as an employer or carrier. James L. Williams of Williams, McClure & Parmelee in Fort Worth, Texas is a veteran workers’ compensation defense attorney who protects the rights of insurance carriers and businesses in Texas workers’ compensation cases.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Workers’ compensation is a state-regulated insurance system that ensures medical bills and some lost wages are paid for employees injured on the job. Texas does not require most private employers to have workers’ compensation insurance coverage. Employers not providing workers’ compensation insurance coverage are referred to as non-subscribers.
Non-subscribers lose important legal protections, including immunity from most lawsuits by injured employees. They could also be forced to pay high damage awards if an injured employee can prove in court that the employer was negligent in any way.
If an employer has workers’ compensation insurance coverage, Texas law limits the employer’s liability for work-related injuries. Injured employees may get medical and income benefits set by state law, but generally may not sue their employers.
Texas law requires all employers, with or without workers’ compensation insurance coverage, to comply with reporting and notification requirements under the Texas Workers’ Compensation Act.
When an employer purchases a workers’ compensation policy or is certified to self-insure, the insurance company (or a third-party administrator in the case of self-insurance) pays medical and income benefits. Employers who choose to provide workers’ compensation insurance coverage must do so in one of the following ways:
buy a workers’ compensation insurance policy from an insurance company licensed by the Texas Department of Insurance (TDI);
be certified by the DWC to self-insure workers’ compensation claims;
join a self-insurance group that has received a certificate of approval from TDI; or
be a self-insured governmental entity.
Liability Limits for Workers’ Compensation Subscribers
For employers that provide workers’ compensation insurance coverage, Texas law limits the employer’s liability for work-related injuries of employees. Non-subscribers are not given these legal protections. This means that if an injured employee files suit and is able to prove that the injury was due to the employer’s negligence, the non-subscriber could be subject to high damage awards, including punitive damages and damages for pain and suffering. The employer might also be required to pay defense-related legal expenses, such as attorneys’ fees.
Non-subscribers also lose certain common-law defenses, including:
the injured employee’s negligence caused the injury;
the negligence of fellow employees caused the injury; or
the injured employee knew of the danger and voluntarily accepted it.
Employee Benefits
Employees covered by workers’ compensation insurance coverage receive benefits based on the type and severity of their injuries. Benefits can include:
medical benefits for medically necessary treatment of work-related injuries and illnesses;
disability income benefits for a specified period of time up to a certain dollar limit set by law;
compensation for burial expenses for employees killed on the job;
death benefits for dependents of employees killed on the job.
If there is a workers’ compensation claim for benefits, an employee’s family may be entitled to additional benefits if the employee is killed and the death was caused by the employer’s gross negligence or intentional act or omission.
Alternative Coverages are Not Substitutes for Workers’ Compensation Insurance Coverage
Some employers buy accident and health insurance policies or disability policies or create employer indemnification agreements as less costly alternatives to workers’ compensation insurance coverage. Even though these policies may provide benefits to an injured employee, Texas law does not recognize them as substitutes for workers’ compensation insurance coverage. TDI rules prohibit insurance companies from representing that alternative coverages are substitutes for workers’ compensation insurance coverage.
Unlike workers’ compensation insurance coverage, alternative coverages typically have specific policy limits on medical benefits for each covered employee. In addition, alternative coverages usually have shorter maximum payment periods than those provided by Texas workers’ compensation laws.
Employers that buy alternative coverages do not have workers’ compensation liability protections. They may be sued by their injured employees and lose their right to use key common-law defenses in the suit. Moreover, many alternative coverages do not provide coverage for judgments for pain and suffering, punitive damages, and attorneys’ fees.
A company must be licensed to provide workers’ compensation insurance. Texas law does not recognize insurance policies sold by unlicensed companies, including those legally selling surplus lines insurance. Surplus lines insurance provides coverage for unusual risks that most licensed companies are unwilling to insure. Companies and agents that sell this kind of insurance must be licensed in their home state or country and authorized to sell surplus lines insurance in Texas.
Employers purchasing workers’ compensation insurance from unlicensed companies do not have the liability protections provided to employers purchasing policies from licensed companies. They may be sued by their injured employees and lose their right to use key common-law defenses in the suit. Moreover, unlicensed companies do not provide coverage for judgments for pain and suffering, punitive damages, and attorneys’ fees.
The Texas Property and Casualty Insurance Guaranty Association, which pays policyholder claims against licensed insurance companies that become insolvent, does not cover unlicensed companies. Claims against unlicensed companies will likely go unpaid if the company becomes insolvent. To find out if a company is licensed, call TDI’s Consumer Help Line at 1-800-252-3439 or 512-676-6282 in Austin between 8 a.m. and 5 p.m., or by viewing company profiles on our website at http://www.tdi.texas.gov.
Coverage Comparison
Workers´ Compensation
“Alternative” Policy (Employee Retirement Income Security Act (ERISA) Plan)
Unauthorized Insurance Policy/Surplus Lines
No Coverage
What determines benefit levels?
Texas law
Court/Alternate dispute resolution
Court/Alternate dispute resolution
Court
Who pays medical and lost-income benefits?
Insurance company
Insurance company up to policy limits; employer pays rest
Depends on the policy
Employer
Who pays employer’s legal fees?
Insurance company
Governed by the policy terms
Governed by the policy terms
Employer
Are benefits protected by a guaranty association?
Yes
Limited
No
No
Can an injured employee win judgments for pain and suffering and punitive damages?
No, except in certain circumstances
Yes, up to certain limits
Yes, up to certain limits
Yes, up to certain limits
Note: Policy terms in unlicensed policies may be unenforceable.
For More Information or Assistance
For answers to general insurance questions, for information about filing an insurance-related complaint, or to report suspected insurance fraud, call the Consumer Help Line at 1-800-252-3439 or 512-676-6282 in Austin between 8 a.m. and 5 p.m., Central time, Monday through Friday, or visit our website athttp://www.tdi.texas.gov.
This publication is a summary and is presented for information purposes only. It is not a substitute for current Texas laws or DWC rules. For current information, view our website or call Customer Assistance at 1-800-252-7031. This publication is not an endorsement by DWC of any service, product, or company.
See https://www.tdi.state.tx.us/wc/employer/cb007.html
As always, it is important to contact a knowledgeable and experienced Texas non subscriber law defense attorney to help you understand your rights as an Employer. James L. Williams of Williams, McClure & Parmelee in Fort Worth, Texas is a veteran employment law and workers’ compensation defense attorney who protects the rights of businesses in Texas employment law and non subscriber cases.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Who is Covered
The Fair Labor Standards Act (FLSA) is administered by the Wage and Hour Division (WHD). The Act establishes standards for minimum wages, overtime pay, recordkeeping, and child labor. These standards affect more than 130 million workers, both full‑time and part‑time, in the private and public sectors.
The Act applies to enterprises with employees who engage in interstate commerce, produce goods for interstate commerce, or handle, sell, or work on goods or materials that have been moved in or produced for interstate commerce. For most firms, a test of not less than $500,000 in annual dollar volume of business applies (i.e., the Act does not cover enterprises with less than this amount of business).
However, the Act does cover the following regardless of their dollar volume of business: hospitals; institutions primarily engaged in the care of the sick, aged, mentally ill, or disabled who reside on the premises; schools for children who are mentally or physically disabled or gifted; preschools, elementary and secondary schools, and institutions of higher education; and federal, state, and local government agencies.
Employees of firms that do not meet the $500,000 annual dollar volume test may be covered in any workweek when they are individually engaged in interstate commerce, the production of goods for interstate commerce, or an activity that is closely related and directly essential to the production of such goods.
In addition, the Act covers domestic service workers, such as day workers, housekeepers, chauffeurs, cooks, or full‑time babysitters, if they receive at least $1,700 in 2009 in cash wages from one employer in a calendar year, or if they work a total of more than eight hours a week for one or more employers. (This calendar year threshold is adjusted by the Social Security Administration each year.) For additional coverage information, see the Wage and Hour Division Fact Sheet #14: Coverage Under the FLSA.
The Act exempts some employees from its overtime pay and minimum wage provisions, and it also exempts certain employees from the overtime pay provisions only. Because the exemptions are narrowly defined, employers should check the exact terms and conditions for each by contacting their local Wage and Hour Division office.
The following are examples of employees exempt from both the minimum wage and overtime pay requirements:
Executive, administrative, and professional employees (including teachers and academic administrative personnel in elementary and secondary schools), outside sales employees, and certain skilled computer professionals (as defined in the Department of Labor’s regulations) 1
Employees of certain seasonal amusement or recreational establishments
Employees of certain small newspapers and switchboard operators of small telephone companies
Seamen employed on foreign vessels
Employees engaged in fishing operations
Employees engaged in newspaper delivery
Farm workers employed on small farms (i.e., those that used less than 500 “man‑days” of farm labor in any calendar quarter of the preceding calendar year)
Casual babysitters and persons employed as companions to the elderly or infirm
The following are examples of employees exempt from the overtime pay requirements only:
Certain commissioned employees of retail or service establishments
Auto, truck, trailer, farm implement, boat, or aircraft salespersons employed by non‑manufacturing establishments primarily engaged in selling these items to ultimate purchasers
Auto, truck, or farm implement parts‑clerks and mechanics employed by non-manufacturing establishments primarily engaged in selling these items to ultimate purchasers
Railroad and air carrier employees, taxi drivers, certain employees of motor carriers, seamen on American vessels, and local delivery employees paid on approved trip rate plans
Announcers, news editors, and chief engineers of certain non‑metropolitan broadcasting stations
Domestic service workers who reside in their employers’ residences
Employees of motion picture theaters
Farmworkers
Certain employees may be partially exempt from the overtime pay requirements. These include:
Employees engaged in certain operations on agricultural commodities and employees of certain bulk petroleum distributors
Employees of hospitals and residential care establishments that have agreements with the employees that they will work 14‑day periods in lieu of 7‑day workweeks (if the employees are paid overtime premium pay within the requirements of the Act for all hours worked over eight in a day or 80 in the 14‑day work period, whichever is the greater number of overtime hours)
Employees who lack a high school diploma, or who have not completed the eighth grade, who spend part of their workweeks in remedial reading or training in other basic skills that are not job specific. Employers may require such employees to engage in these activities up to 10 hours in a workweek. Employers must pay normal wages for the hours spent in such training but need not pay overtime premium pay for training hours
Basic Provisions/Requirements
The Act requires employers of covered employees who are not otherwise exempt to pay these employees a minimum wage of not less than $7.25 per hour effective July 24, 2009. Youths under 20 years of age may be paid a minimum wage of not less than $4.25 an hour during the first 90 consecutive calendar days of employment with an employer. Employers may not displace any employee to hire someone at the youth minimum wage. For additional information regarding the use of the youth minimum wage provisions, see the Wage and Hour Division Fact Sheet #32: Youth Minimum Wage – FLSA.
Employers may pay employees on a piece‑rate basis, as long as they receive at least the equivalent of the required minimum hourly wage rate and overtime for hours worked in excess of 40 hours in a workweek. Employers of tipped employees (i.e., those who customarily and regularly receive more than $30 a month in tips) may consider such tips as part of their wages, but employers must pay a direct wage of at least $2.13 per hour if they claim a tip credit. They must also meet certain other requirements. For a full listing of the requirements an employer must meet to use the tip credit provision, see the Wage and Hour Division Fact Sheet #15: Tipped Employees Under the FLSA.
The Act also permits the employment of certain individuals at wage rates below the statutory minimum wage under certificates issued by the Department of Labor:
Student learners (vocational education students);
Full‑time students in retail or service establishments, agriculture, or institutions of higher education; and
Individuals whose earning or productive capacities for the work to be performed are impaired by physical or mental disabilities, including those related to age or injury.
The Act does not limit either the number of hours in a day or the number of days in a week that an employer may require an employee to work, as long as the employee is at least 16 years old. Similarly, the Act does not limit the number of hours of overtime that may be scheduled. However, the Act requires employers to pay covered employees not less than one and one‑half times their regular rate of pay for all hours worked in excess of 40 in a workweek, unless the employees are otherwise exempt. For additional information regarding overtime pay requirements, see the Wage and Hour Division Fact Sheet #23: Overtime Pay Requirements of the FLSA.
The Act prohibits performance of certain types of work in an employee’s home unless the employer has obtained prior certification from the Department of Labor. Restrictions apply in the manufacture of knitted outerwear, gloves and mittens, buttons and buckles, handkerchiefs, embroideries, and jewelry (where safety and health hazards are not involved). Employers wishing to employ homeworkers in these industries are required to provide written assurances to the Department of Labor that they will comply with the Act’s wage and hour requirements, among other things.
The Act generally prohibits manufacture of women’s apparel (and jewelry under hazardous conditions) in the home except under special certificates that may be issued when the employee cannot adjust to factory work because of age or disability (physical or mental), or must care for a disabled individual in the home.
Special wage and hour provisions apply to state and local government employment. For these special provisions, see the Wage and Hour Division Fact Sheet #7: State and Local Governments Under the FLSA.
Employee Rights
Employees may find out how to file a complaint by contacting the local Wage and Hour Division office, or by calling the program’s toll-free help line at 1-866-4USWAGE (1-866-487-9243). In addition, an employee may file a private suit, generally for the previous two years of back pay (three years in the case of a willful violation) and an equal amount as liquidated damages, plus attorney’s fees and court costs.
It is a violation of the Act to fire or in any other manner discriminate against an employee for filing a complaint or for participating in a legal proceeding under the Act.
Recordkeeping, Reporting, Notices and Posters
Notices and Posters
Every employer of employees subject to the FLSA’s minimum wage provisions must post, and keep posted, a notice explaining the Act in a conspicuous place in all of their establishments. Although there is no size requirement for the poster, employees must be able to readily read it. The FLSA poster is also available in Spanish, Chinese, Russian, Thai, Hmong, Vietnamese, and Korean. There is no requirement to post the poster in languages other than English.
Covered employers are required to post the general Fair Labor Standards Act poster; however, certain industries have posters designed specifically for them. Employers of Agricultural Employees (PDF) and State & Local Government Employees (PDF) can either post the general Fair Labor Standards Act poster or their specific industry poster. There are also posters for American Samoa (PDF) and Northern Mariana Islands (PDF).
Every employer who employs workers with disabilities under special minimum wage certificates is also required to post the Employee Rights for Workers with Disabilities/Special Minimum Wage Poster.
Recordkeeping
Every employer covered by the FLSA must keep certain records for each covered, nonexempt worker. Employers must keep records on wages, hours, and other information as set forth in the Department of Labor’s regulations. Most of this data is the type that employers generally maintain in ordinary business practice.
There is no required form for the records. However, the records must include accurate information about the employee and data about the hours worked and the wages earned. The following is a listing of the basic payroll records that an employer must maintain:
Employee’s full name, as used for Social Security purposes, and on the same record, the employee’s identifying symbol or number if such is used in place of name on any time, work, or payroll records
Address, including zip code
Birth date, if younger than 19
Sex and occupation
Time and day of week when employee’s workweek begins
Hours worked each day and total hours worked each workweek
Basis on which employee’s wages are paid (e.g., “$9 per hour”, “$440 a week”, “piecework”)
Regular hourly pay rate
Total daily or weekly straight-time earnings
Total overtime earnings for the workweek
All additions to or deductions from the employee’s wages
Total wages paid each pay period
Date of payment and the pay period covered by the payment
For a full listing of the basic records that an employer must maintain, see the Wage and Hour Division Fact Sheet #21: Recordkeeping Requirements Under the FLSA. Employers are required to preserve for at least three years payroll records, collective bargaining agreements, and sales and purchase records. Records on which wage computations are based should be retained for two years. These include time cards and piecework tickets, wage rate tables, work and time schedules, and records of additions to or deductions from wages.
Reporting
The FLSA does not contain any specific reporting requirements; however, the above referenced records must be open for inspection by the Wage and Hour Division’s representatives, who may ask the employer to make extensions, computations, or transcriptions. The records may be kept at the place of employment or in a central records office.
Penalties/Sanctions
The Department of Labor uses a variety of remedies to enforce compliance with the Act’s requirements. When Wage and Hour Division investigators encounter violations, they recommend changes in employment practices to bring the employer into compliance, and they request the payment of any back wages due to employees.
Willful violators may be prosecuted criminally and fined up to $10,000. A second conviction may result in imprisonment. Employers who willfully or repeatedly violate the minimum wage or overtime pay requirements are subject to civil money penalties of up to $1,100 per violation.
For child labor violations, employers are subject to a civil money penalty of up to $11,000 per worker for each violation of the child labor provisions. In addition, employers are subject to a civil money penalty of $50,000 for each violation occurring after May 21, 2008 that causes the death or serious injury of any minor employee – such penalty may be doubled, up to $100,000, when the violations are determined to be willful or repeated.
When the Department of Labor assesses a civil money penalty, the employer has the right to file an exception to the determination within 15 days of receipt of the notice. If an exception is filed, it is referred to an Administrative Law Judge for a hearing and determination as to whether the penalty is appropriate. If an exception is not filed, the penalty becomes final.
The Department of Labor may also bring suit for back pay and an equal amount in liquidated damages, and it may obtain injunctions to restrain persons from violating the Act.
The Act also prohibits the shipment of goods in interstate commerce that were produced in violation of the minimum wage, overtime pay, child labor, or special minimum wage provisions.
As always, it is important to contact a knowledgeable and experienced Texas employment law defense attorney to help you understand your rights as an Employer. James L. Williams of Williams, McClure & Parmelee in Fort Worth, Texas is a veteran employment law defense attorney who protects the rights of businesses in Texas employment law cases, with respect to both state and federal law.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
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