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Wages and Hours Worked: Minimum Wage and Overtime Pay–Fort Worth, Texas Employment Attorneys

Employers and the Fair Labor Standards Act (FLSA)

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.

See http://www.dol.gov/compliance/guide/minwage.htm

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.

Jul 8th, 2015 Employment Law Defense

How to Appeal an Unemployment Claim Decision – For Texas Employers–Fort Worth, Texas Employment Defense Attorneys

Establishing Appeal Rights for the Employer
You have the right to appeal a decision only if you have established yourself as an interested party.
If you were the last person or company for whom a claimant worked before applying for unemployment benefits, TWC will mail you a Notice of Application for Unemployment Benefits. You must respond to that notice within 14 days to become an interested party in the claim and preserve your right to appeal a determination. For more information, see the Introduction to Unemployment Benefits Appeals for Employers. To respond online, use Unemployment Benefits Employer Response to Notice of Application.

How to Appeal a Determination
These instructions are for the first step in the appeals process, which is an appeal to the Appeal Tribunal. The first step is to appeal in writing to TWC.
You must appeal in writing within 14 calendar days from the date that we mail you the Determination Notice. The date mailed is located on the top of the Determination Notice form, and the last day you can file an appeal is at the bottom of the form. If the fourteenth day falls on a federal or state holiday, you have until the next business day to file your appeal.
You can submit your written appeal online, in person at your Workforce Solutions office, or by mailing or faxing your appeal letter to the Appeals Department at the address or fax number on your Determination Notice. You cannot submit an appeal by email or over the telephone. If you choose to fax the information, keep the paperwork that indicates successful transmission of your appeal.
Include in your letter or appeal form:
The claimant’s name and Social Security number
Your name
Your TWC Tax account number
Your current address
The date TWC mailed you the Determination Notice
A copy of the Determination Notice, if possible
Any dates on which you will not be able to participate in a hearing
Keep a copy of your appeal for your records.

Accommodations for Your Hearing

Inform the TWC as early as possible if you need accommodations for the appeal hearing in any of the following areas:
If you or your witnesses need interpreters – include needed languages
If you or your witnesses have a hearing impairment
If you need access to a telephone or fax machine
Appeal Hearing Notification Details
It may take six to eight weeks to receive a hearing information packet with information about your appeal. TWC will mail you the packet five to 10 days before your hearing.
The hearing information packet includes:
The Notice of Telephone Hearing, which includes the date and time of hearing, the telephone number to call for the hearing, and the name and contact information of the Hearing Officer assigned to the hearing
Instructions on how to participate in the hearing
Instructions on how to submit any additional documents
The information TWC received in response to the claim
All fact-finding statements TWC gathered while investigating the issue(s) on appeal
Any protests to the claim
The claim issues up for discussion

Motion for Rehearing

You may request a rehearing within 14 days of the date TWC mailed you the Commission decision. TWC will grant the Motion for Rehearing only if you can show these three things:

Important new information about your case
A compelling reason why you did not present this information earlier
Why you think this information could change the outcome of your case
You can submit your written Motion for Rehearing online, in person at your Workforce Solutions office, or by mailing or faxing your letter to Commission Appeals at the address or fax number in the instructions included with your Commission decision. You cannot file a Motion for Rehearing by email or telephone. If you choose to fax the information, keep the paperwork that indicates successful transmission of your Motion for Rehearing.

Appeal to a Civil Court
You may appeal to a civil court between 15 and 28 days after the date TWC mailed you the Commission decision. You must have completed all the appeal steps available through TWC, except the optional Motion for Rehearing, before appealing to a civil court. The instructions for submitting an appeal to a civil court are included with the Commission decision.
If you ask for a rehearing and the Commissioners deny it, you can still appeal that decision to a civil court.

See http://www.twc.state.tx.us/businesses/how-appeal-decision-employers
As always, it is important to contact a knowledgeable and experienced Texas employment law defense attorney to help guide you through this process, and to help you understand your rights as an Employer.

Jul 8th, 2015 Employment Law Defense

Wait a Second… Didn’t you Sign a Release of This Employment Discrimination Claim?!?–Texas Employment Attorneys

It’s very common for employers, when terminating an employee, to pay a sum of money (usually termed “severance”) in exchange for the former employee’s release of any legal claim related to the employment relationship. Often times the terminated employee is satisfied with the “severance” payment and everyone goes on with their lives.

However, there are other times when the terminated employee is not satisfied with the way things ended with its former employer. Maybe the “severance” was not enough, or maybe the employee felt that he was terminated for an unlawful reason. This is when the employer really needs that release it paid for to be enforceable.

The problem is, many of them are not. Employment law can be very technical and as a result innocent mistakes are frequently made. Does the release provide the employee with an opportunity to review the terms with independent counsel? Does it use clear and specific language to address the type of claims being waived? Does it require the employee to acknowledge that he is receiving fair compensation in return for his signature on the release?

If the answer is no to any of these questions there is a possibility that the employee will be permitted to pursue legal action despite that fact that he signed a release. The good news is that with the help of an experienced employment lawyer problems in release documents can be easily corrected.

Aug 28th, 2014 Employment Law Defense

Fire At-Will! …Only When Prepared to Face the Legal Consequences–Fort Worth, Texas Employment Attorneys

You have likely heard that Texas is an employment at-will state. This means that an employer may terminate an employee’s employment at any time, without notice. Furthermore, there is no requirement that the employer state a cause for the termination. This general rule makes it real easy for the employer who wishes to make a personnel change, right? Wrong!

For every rule there is an exception, and in the case of at-will employment, the exceptions have nearly swallowed the rule, making the decision to terminate an employee one of the more complex decisions that a business will consider.

Personnel decisions that are based (or appear to be based) on race, color, sex, religion, national origin, or age are often called into scrutiny by the disgruntled employee or job applicant. Similarly, the decision to terminate someone who has recently filed for workers’ compensation benefits or benefits under the Family Medical Leave Act can lead to claims of retaliation.

So, although Texas does technically allow termination without cause every employer needs to understand the various exceptions to the rule. Using policies and procedures that establish the employer’s expectations and the procedure for disciplining employees when those expectations are not met will go a long way in the effort to minimize employment disputes.

Aug 28th, 2014 Employment Law Defense

In-Cab of Truck Video Surveillance of Drivers– Texas Trucking Defense Attorneys

Back in the day, truck drivers use to drive all over the country with daily stops in the morning to find a payphone so they could call dispatch to let them know of their location and how much farther they had to go to delivery or next pick up.

Then the pager got introduced to the trucking industry as a great new way of communicating with the driver. Wow, beep, beep, and then a number would come across the screen and the driver would find a payphone to call the 1-800 number. When Qualcomms got introduced many drivers didn’t like it because, they felt they were being spied on. What do drivers’ think now that cameras are being put into the truck cab? Not only to look out the windshield, but also looking at the driver as he drives.

Several reasons the trucking companies are giving for this new technology, for safety and data collecting information on drivers reactions as they drive. Whether it be a hard break, accident or bad weather. In some cases it has help some drivers to be better drivers’ because safety was able to see what occurred at the time in question. At times it just a bad habit, other times the driver is doing things against company policy. The company can help the driver by pointing out the bad habit or decide it is time to part ways…

See rest of article:

https://www.linkedin.com/today/post/article/20140730213815-144411830-in-cab-of-truck-video-surveillance-of-drivers?trk=object-title
www.texasdefensecounsel.com

Aug 22nd, 2014 Employment Law Defense, Insurance Defense Litigation, Nonsubscriber Law, Workers' Compensation Defense

Reducing Hazards to Temporary Workers– Fort Worth, Texas Insurance Defense Attorneys

In 2013, an enforcement initiative was launched by OSHA focusing on the improvement of safety measures for temporary workers.

OSHA defines “temporary workers” as workers that are supplied to a host employer and paid by a staffing agency. This applies whether the worker’s job is temporary or not. OSHA’s enforcement initiative focuses on identifying temporary workers, evaluating whether they are exposed to any safety hazards, and determining if they have received proper training and protection.

In recent months, OSHA has received a number of reports of temporary workers suffering fatal injuries during their first few days on a job. For example, in December of 2013, an Illinois temporary worker was killed by the forklift he was operating when it fell between the dock and truck. Also in December of 2013, a temporary worker died from a fall after he was caught in a sorter. Lastly OSHA cited Bacardi Bottling Corporation after a 21-year old temporary worker was fatally injured his first day on the job.

Ultimately, OSHA views the protecting of temporary workers as a joint responsibility between host employers and their staffing agency. However, OSHA has shown concern that as a means to avoid meeting all their compliance obligations under the OSH Act and other worker protection laws, some employers are using more and more temporary workers. Temporary workers are often not given adequate safety and health training or explanations of their duties by either the temporary staffing agency or the host employer and are likely more vulnerable to workplace safety and health hazards than workers in traditional employment relationships.

To see article:
https://www.linkedin.com/today/post/article/20140722232211-5310498–reducing-hazards-to-temporary-workers?trk=object-title

Aug 21st, 2014 Employment Law Defense, Insurance Defense Litigation, Nonsubscriber Law, Workers' Compensation Defense

Texas Looks At Mandatory Workers’ Comp–Texas Non Subscriber Attorneys

On Tuesday the Business & Industry Committee of the Texas House held a hearing on the voluntary nature of workers’ compensation in Texas. Some effort to make workers’ comp mandatory is made in every session of the legislature . Some effort to make workers’ comp mandatory is made in every session of the legislature and usually goes nowhere. That may be the case in the upcoming session, but it seems the concept will get a harder look this time. The hearing was due to the interim charge from Speaker Joe Strauss to study the “voluntary” nature of workers’ comp. in Texas….

linkedin.com https://www.linkedin.com/today/post/article/20140424155428-48751910-texas-looks-at-mandatory-workers-comp

www.texasdefensecounsel.com

Aug 11th, 2014 Employment Law Defense, Insurance Defense Litigation, Nonsubscriber Law, Workers' Compensation Defense

Mental Anguish Damages Require More Than Anxiety and A Bad Night’s Sleep–Texas Insurance Defense Attorneys

In a case grounded in allegations of defamation, The Texas Supreme Court addressed the minimum amount of proof necessary to support damages for mental anguish. The case of Hancock v. Variyam, 400 S.W.3d 59, 62 (Tex. 2013) involved a defamation suit relating to a letter written by a medical doctor alleging that another doctor had a “reputation for lack of veracity” and “deals in half truths.” The trial court ruled that the letter was defamatory per se and the jury awarded damages, including a total of $30,000 for mental anguish, past and future. The defendant doctor appealed, attacking the legal sufficiency of the mental anguish damages. Plaintiff’s testimony at trial had been that he was embarrassed, anxious, and could not sleep. The Supreme Court stated “There is no evidence of mental anguish because evidence that (Plaintiff) experienced some sleeplessness and other anxiety does not rise to the level of a substantial disruption in his daily routine or a high degree of mental pain and distress.” The court therefore held that the plaintiff doctor failed to prove that he suffered a substantial disruption in daily routine or a high degree of mental pain and distress. Also, the plaintiff must additionally show the nature, duration, and severity of the mental anguish.

The court referenced an older Supreme Court case styled Parkway Co. v. Woodruff, 901 S.W.2d 434, 443 (Tex. 1995) and stated that the plaintiff had not come forward with sufficient proof of actionable or compensable mental anguish. In Parkway v Woodruff, the court had found no evidence of mental anguish damages where the plaintiff had testified that he had “a lot of anguish, a lot of grief” and disappointment and humiliation because they did not rise to the level of a high degree of mental pain and distress or indicate a substantial disruption of his daily routine; Parkway, 901 S.W.2d at 445. The Parkway v Woodruff court had held that “anger, frustration, or vexation . . . do not support the conclusion that these emotions rose to a compensable level”.

Although the Hancock v. Variyam case happened to involve allegations of defamation, the Supreme Court’s interpretation of what is required to prove mental anguish damages has a broad effect across a wide spectrum of causes of action and practice areas. Mental anguish damages can arise in employment law matters, personal injury lawsuits, non-subscriber litigation and elsewhere. It is expected that this decision will continue to impact the way that mental evidence damages are pled, presented, and defended in Texas civil litigation for years to come. The Hancock v. Variyam decision was not entirely surprising, given some of the older case law. But it very squarely served notice to plaintiff lawyers not to try to come forward with evidence that lacks something of a “magic word” threshold. And to those of us defending lawsuits on behalf of employers, businesses and insurance companies, we have some fresh case law to help defeat those marginal mental anguish claims that we frequently see.

Feb 28th, 2014 Contracts and Commercial Litigation, Employment Law Defense, Insurance Defense Litigation, Nonsubscriber Law

Premises Liability Issues in Defense of Non-Subscribers in Texas–Fort Worth, Texas Non Subscriber Attorneys

Premises liability claims are often brought against businesses and companies we represent in Texas. Any business which is in possession of a building or land (i.e. a premises) is subject to the possibility of a claim being brought by anyone who is injured while on the premises. Some of the most common forms of premises liability involve slip and fall cases, swimming pool accidents, landlord negligence, elevator accidents, improper maintenance and negligent security.

But Premises liability claims in Texas are not limited to third party claims. Premises liability claims are frequently brought by employees against their nonsubscriber employers. Premises liability can be described as the legal responsibility for an injury (usually a personal injury) that arises out of the ownership or operation of property. When we represent businesses who have taken advantage of their rights to be responsible non-subscribers, we see premises liability claims arise when an employee is injured by a condition of the employer’s property. This type of claim is in contrast to non-premises claims, which would involve acts or activities of a co- employee, a third party, or even the employee himself or herself.

Premises owners are not guarantors of the safety of its customers or employees. As a result, an employee is not automatically entitled to recover for his or her injuries simply because the injury occurred on the employer’s property.

To prevail on a premises-liability claim against his or her employer in Texas, an employee must generally prove four elements (notice; unreasonably dangerous condition; failure to exercise ordinary care; and proximate cause).

The four elements are more specifically described as follows:

(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 employee’s injury.

Employers who do not subscribe to the Texas Worker’s Compensation Act under Section 406.033 of the Texas Labor Code are denied the common law defenses of assumption of the risk and contributory negligence. But the employee still has to prove that the employer owes a duty to the employee.

In one of the leading cases on premises liability law in Texas, Brookshire Grocery Company v. Goss, 262 S.W.3d 793 (2008), the Texas Supreme Court reversed a jury verdict and the court of appeals when a grocery store was found negligent after its employee was injured when she attempted to maneuver around a loaded cart in a deli cooler. Because any danger inherent to stepping around such carts is commonly known, the court held that the employer had no duty to warn employees of the risk or provide specialized training to avoid that hazard. In reversing the verdict, the Supreme Court noted that the threshold question was one of duty, and that the employer had no such duty. The court asserted that an absence of duty is not an affirmative defense, stating that it ““depends on a legal analysis balancing a number of factors, including the risk, foreseeability, and likelihood of injury, and the consequences of placing the burden on the defendant.” There was no evidence that it was unusually dangerous for an employer to keep a loaded lowboy in a cooler. Furthermore, to the extent that stepping over a lowboy is dangerous, it held that it is a danger apparent to anyone, including the injured employee.

For Texas non-subscribers, this decision of the Court is a welcome sight. If your company is a non-subscriber to Texas workers’ compensation, we can answer questions you might have regarding premises liability issues and the safety of your employees.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas non-subscriber defense attorneys in Tarrant County 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.

Feb 28th, 2014 Employment Law Defense, Nonsubscriber Law

Cell Phone Laws for Texas Drivers– Fort Worth, Texas Insurance Defense Attorneys

As insurance defense attorneys in Texas, we have been asked by insurance companies to defend lawsuits on a number of occasions that have involved allegations against the insured driver that cell phone use while driving contributed to or was a proximate cause of a motor vehicle accident.

It is well known that Texas has no statewide law that bans the use of cell phones while driving. However, many local areas prohibit or limit the use of cell phones while driving. Also, Texas law prohibits the use of cell phones while driving if a person has had a learner’s permit for six months or less; if he or she is under 18 years old; or if he or she operates a school bus when children are present; and if the driver is in a school crossing zone.

As the proud owner of a teenage driver myself, I am glad that there are restrictions on his ability to use a wireless communication device at all while driving. At least the law is trying to do the right thing.

Some of the various jurisdictions in Texas that may have further restrictions on cell phone use while driving include the following: Arlington, Austin, Bellaire, Brownsville, Conroe, El Paso, Galveston, Harlingen, Houston, Magnolia, McAllen, Mission, Missouri City, Mount Vernon, Nacogdoches, San Antonio, Stephenville, Tomball and Universal City. This is far from an exhaustive list, and the trend is towards more regulation rather than less.

Nearly 25% of all motor vehicle accidents likely involve driver distraction. It is often argued by Plaintiff’s lawyers who we handle cases against that drivers who use cell phones in their vehicles have a higher risk of collision than drivers who don’t, whether holding the phone or using a hands-free device. Sometimes expert witnesses are brought into lawsuits to debate the use of cell phones as a causative factor to the accident.

Chapter 545 of The Texas Transportation Code is the key statutory guidance as far as state regulation of cell phone usage on the rods of Texas. Section 545.425 reads as follows:

Sec. 545.425. USE OF WIRELESS COMMUNICATION DEVICE; OFFENSE. (a) In this section:

(1) “Hands-free device” means speakerphone capability or a telephone attachment or other piece of equipment, regardless of whether permanently installed in the motor vehicle, that allows use of the wireless communication device without use of either of the operator’s hands.

(2) “Wireless communication device” means a device that uses a commercial mobile service, as defined by 47 U.S.C. Section 332.

(b) Except as provided by Subsection (c), an operator may not use a wireless communication device while operating a motor vehicle within a school crossing zone, as defined by Section 541.302, Transportation Code, unless:

(1) the vehicle is stopped; or

(2) the wireless communication device is used with a hands-free device.

(b-1) Except as provided by Subsection (b-2), a municipality, county, or other political subdivision that enforces this section shall post a sign that complies with the standards described by this subsection at the entrance to each school crossing zone in the municipality, county, or other political subdivision. The department shall adopt standards that:

(1) allow for a sign required to be posted under this subsection to be attached to an existing sign at a minimal cost; and

(2) require that a sign required to be posted under this subsection inform an operator that:

(A) the use of a wireless communication device is prohibited in the school crossing zone; and

(B) the operator is subject to a fine if the operator uses a wireless communication device in the school crossing zone.

(b-2) A municipality, county, or other political subdivision that by ordinance or rule prohibits the use of a wireless communication device while operating a motor vehicle throughout the jurisdiction of the political subdivision is not required to post a sign as required by Subsection (b-1) if the political subdivision:

(1) posts signs that are located at each point at which a state highway, U.S. highway, or interstate highway enters the political subdivision and that state:

(A) that an operator is prohibited from using a wireless communication device while operating a motor vehicle in the political subdivision; and

(B) that the operator is subject to a fine if the operator uses a wireless communication device while operating a motor vehicle in the political subdivision; and

(2) subject to all applicable United States Department of Transportation Federal Highway Administration rules, posts a message that complies with Subdivision (1) on any dynamic message sign operated by the political subdivision located on a state highway, U.S. highway, or interstate highway in the political subdivision.

(b-3) A sign posted under Subsection (b-2)(1) must be readable to an operator traveling at the applicable speed limit.

(b-4) The political subdivision shall pay the costs associated with the posting of signs under Subsection (b-2).

(c) An operator may not use a wireless communication device while operating a passenger bus with a minor passenger on the bus unless the passenger bus is stopped.

(d) It is an affirmative defense to prosecution of an offense under this section that:

(1) the wireless communication device was used to make an emergency call to:

(A) an emergency response service, including a rescue, emergency medical, or hazardous material response service;

(B) a hospital;

(D) a health clinic;

(E) a medical doctor’s office;

(F) an individual to administer first aid treatment; or

(G) a police department; or

(2) a sign required by Subsection (b-1) was not posted at the entrance to the school crossing zone at the time of an offense committed in the school crossing zone.

(d-1) The affirmative defense available in Subsection (d)(2) is not available for an offense under Subsection (b) committed in a school crossing zone located in a municipality, county, or other political subdivision that is in compliance with Subsection (b-2).

(e) This section does not apply to:

(1) an operator of an authorized emergency vehicle using a wireless communication device while acting in an official capacity; or

(2) an operator who is licensed by the Federal Communications Commission while operating a radio frequency device other than a wireless communication device.

(f) Except as provided by Subsection (b-2), this section preempts all local ordinances, rules, or regulations that are inconsistent with specific provisions of this section adopted by a political subdivision of this state relating to the use of a wireless communication device by the operator of a motor vehicle.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas civil litigation lawyers in Tarrant County 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.

Feb 28th, 2014 Employment Law Defense, Insurance Defense Litigation, Nonsubscriber Law