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Required FMLA Posters for Texas Employers–Texas Employment Law

Required FMLA Posters for Texas Employers

Comprehensive information and links to required posters (all free of charge) are found at http://www.twc.state.tx.us/ui/lablaw/posters.html.
Posters should be displayed in such a way that each employee can readily see them (generally, the requirements have language such as “conspicuously placed” and “readily accessible” to employees). That would mean that employees who do not normally get to certain offices would not be served by posters displayed at those offices. The offices, or sub-offices, where those employees normally congregate would need to have the posters displayed for the benefit of the employees who are served by each such location.
Posters and other kinds of required notices do not have to be placed in individual locations that are only temporary worksites. Example: construction workers building homes in a subdivision would not need to have posters in each house, but rather only in a company jobsite trailer for the project.
In case of a co-employment situation, such as temporary employees assigned to client companies, the employees working at client sites are co-employed by the staffing firms and their clients under various state and federal employment laws. The notice statutes merely require the posters to be in the workplace. The enforcing agencies do not care who actually places the notices where the employees work, as long as the posters are up and visible to the employees. Thus, as long as the client companies have the applicable notices properly posted, their compliance with the notice requirements inures to the staffing firm’s benefit. By the same token, if the clients do not have the notices posted, the staffing firm would be co-liable with them for non-compliance with the laws. Bottom line: the staffing firm needs to determine whether the appropriate notices are posted in the clients’ locations, and if they are not posted, cooperate with its clients to get the posters displayed.
In a virtual office situation, where the company does not maintain a physical location where employees normally congregate, assemble, or show up for work-related purposes, post copies of the posters on the company’s web site section restricted to staff and send an e-mail, “read receipt requested”, to all affected employees listing and identifying the posters, complete with links to the posters on the web site, and reminding the employees that the posters are there for their benefit and that they should keep the e-mail archived so that they can easily find the links to the posters if needed.

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 new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Jul 21st, 2015 Employment Law Defense

Texas Case on Chronic Depression and the A.D.A.–Texas Employment Law

Chronic depression alone doesn’t necessarily mean an employee is disabled within the meaning of the Americans with Disabilities Act. Granting summary judgment for the Defendant Employer, the court found that the employee failed to establish that she was “disabled” within the meaning of the ADA. The definition of “disability” under the ADA requires (1) a physical or mental impairment that substantially limits one or more of the major life activities; (2) a record of such impairment or, (3) being regarded as having such an impairment.

Bethel v. Garland, City of, Northern District of Texas No. 3-96-CV-1103-BD, September 11, 1997.

Jul 21st, 2015 Employment Law Defense

Workers’ Compensation Insurance Coverage for Texas Employers: Know the Texas Law–TDI

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; • 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 voluntary payments, that voluntary payments are being made. The insurance carrier is only required to reimburse the employer for the amount of benefits the insurance carrier would have paid. If the employer made payments in excess of what the insurance carrier would have paid, the excess amount is not reimbursable, unless there is a written agreement between the injured employee and the employer that the excess amount can be recouped from future impairment income benefits paid by the insurance carrier, if any. The employer must file the DWC Form- 002, Employer’s Report for Reimbursement of Voluntary Payment. The DWC Form-002 may be obtained from the TDI website at http://www.tdi.texas.gov/forms/ form20employer.html or by calling 1-800-252-7031.

Jul 20th, 2015 Employment Law Defense, Workers' Compensation Defense

The Public Information Act and Texas Law on Obtaining Government Records of Texas Department of Insurance

Texas Government Code, Chapter 552, gives Texas businesses and individuals the right to access government records; and an officer for public information and the officer’s agent may not ask why you want them. All government information is presumed to be available to the public. Certain exceptions may apply to the disclosure of the information. Governmental bodies shall promptly release requested information that is not confidential by law, either constitutional, statutory, or by judicial decision, or information for which an exception to disclosure has not been sought.

Request Information

To request information from TDI, please submit your request as follows:

By mail to:
Office of Agency Counsel
Texas Department of Insurance
P.O. Box 149104, Mail Code 110-1C
Austin, Texas 78714-9104

By e-mail to:
AgencyCounsel@tdi.texas.gov

By fax to:
(512) 490-1021

In person at:
333 Guadalupe
Austin, Texas 78701

For complaints regarding failure to release public information, please contact your local County or District Attorney at:

Office of the Attorney General, Open Records Hotline, at 512-478-6736 or toll-free at 1-877-673-6839.
Complaints Regarding Overcharges, please contact the Office of the Attorney General at (512) 475-2497.

If you need special accommodation pursuant to the Americans with Disabilities Act (ADA), please contact our ADA coordinator at (512) 676-6103.

Rights of Requestors

You have the right to:

Prompt access to information that is not confidential or otherwise protected;
Receive treatment equal to all other requestors, including accommodation in accordance with the Americans with Disabilities Act (ADA) requirements;
Receive certain kinds of information without exceptions, like the voting record of public officials, and other information;
Receive a written itemized statement of estimated charges, when charges will exceed $40, in advance of work being started and opportunity to modify the request in response to the itemized statement;
Choose whether to inspect the requested information (most often at no charge), receive copies of the information or both;
A waiver or reduction of charges if the governmental body determines that access to the information primarily benefits the general public;
Receive a copy of the communication from the governmental body asking the Office of the Attorney General for a ruling on whether the information can be withheld under one of the accepted exceptions, or if the communication discloses the requested information, a redacted copy;
Lodge a written complaint about overcharges for public information with the Office of the Attorney General. Complaints of other possible violations may be filed with the county or district attorney of the county where the governmental body, other than a state agency, is located. If the complaint is against the county or district attorney, the complaint must be filed with the Office of the Attorney General.

Responsibilities of Governmental Bodies

All governmental bodies responding to information requests have the responsibility to:

Establish reasonable procedures for inspecting or copying public information and inform requestors of these procedures;
Treat all requestors uniformly and shall give to the requestor all reasonable comfort and facility, including accommodation in accordance with ADA requirements;
Be informed about open records laws and educate employees on the requirements of those laws;
Inform requestors of the estimated charges greater than $40 and any changes in the estimates above 20 percent of the original estimate, and confirm that the requestor accepts the charges, or has amended the request, in writing before finalizing the request;
Inform the requestor if the information cannot be provided promptly and set a date and time to provide it within a reasonable time;
Request a ruling from the Office of the Attorney General regarding any information the governmental body wishes to withhold, and send a copy of the request for ruling, or a redacted copy, to the requestor;
Segregate public information from information that may be withheld and provide that public information promptly;
Make a good faith attempt to inform third parties when their proprietary information is being requested from the governmental body;
Respond in writing to all written communications from the Office of the Attorney General regarding charges for the information and complaints about violations of the Act.

Procedures to Request Information

Submit a request by mail, fax, email or in person according to a governmental body’s reasonable procedures.
Include enough description and detail about the information requested to enable the governmental body to accurately identify and locate the information requested.
Cooperate with the governmental body’s reasonable efforts to clarify the type or amount of information requested.

A. Information to be released

You may review it promptly, and if it cannot be produced within 10 working days the public information officer will notify you in writing of the reasonable date and time when it will be available.
Keep all appointments to inspect records and to pick up copies. Failure to keep appointments may result in losing the opportunity to inspect the information at the time requested.

B. Cost of Records

You must respond to any written estimate of charges within 10 days of the date the governmental body sent it or the request is considered automatically withdrawn.
If estimated costs exceed $100.00 (or $50.00 if a governmental body has fewer than 16 full time employees) the governmental body may require a bond, prepayment or deposit.
You may ask the governmental body to determine whether providing the information primarily benefits the general public, resulting in a waiver or reduction of charges.
Make a timely payment for all mutually agreed charges. A governmental body can demand payment of overdue balances exceeding $100.00, or obtain a security deposit, before processing additional requests from you.

C. Information that may be withheld due to an exception

By the 10th business day after a governmental body receives your written request, a governmental body must:
1. Request an Attorney General opinion and state which exceptions apply;
2. Notify the requestor of the referral to the Attorney General; and
3. Notify third parties if the request involves their proprietary information.
Failure to request an Attorney General opinion and notify the requestor within 10 business days will result in a presumption that the information is open unless there is a compelling reason to withhold it.
Requestors may send a letter to the Attorney General arguing for release, and may review arguments made by the governmental body. If the arguments disclose the requested information, the requestor may obtain a redacted copy.
The Attorney General must issue a decision no later than the 45th working day from the day after the attorney general received the request for a decision. The attorney general may request an additional 10 working day extension.
Governmental bodies may not ask the Attorney General to “reconsider” an opinion.

For more information contact: AgencyCounsel@tdi.texas.gov

Jul 20th, 2015 Employment Law Defense, Insurance Defense Litigation, Nonsubscriber Law, Workers' Compensation Defense

The Main Federal EEO Laws That Apply to Texas Employers–Texas Employment Law

The six major federal (Equal Employment Opportunity (EEO) laws that apply to Texas employers:

Title VII of the Civil Rights Act of 1964 (Title VII);
Section 1981 of the Civil Rights Act of 1866;
The Equal Pay Act of 1963;
The Age Discrimination in Employment Act of 1967 (ADEA);
The Immigration Reform and Control Act of 1986; and
The Americans with Disabilities Act of 1990 (ADA).

Jul 20th, 2015 Employment Law Defense

Sample At Will Statement and Disclaimer in Applications for Employment–Texas Employment Law

FORM for At Will Statement and Disclaimer in Applications for Employment–Texas Employment Law

I understand that nothing in this application, or in any prior or subsequent written or oral statement, creates a contract of employment or any rights in the nature of a contract. I agree and understand that if I am hired by the ABC Corporation (ABC), my employment will be at-will, for an indefinite period of time, and may be terminated at any time, with or without cause or notice, at the option of ABC or myself. I understand that I have the right to end my employment at any time and that XYZ retains that same right. I also understand that no one has the authority to enter into any contract, agreement or modification of the foregoing unless such contract, agreement or modification is in writing and signed by the president of ABC.

Jul 20th, 2015 Contracts and Commercial Litigation, Employment Law Defense

After-Acquired Evidence in Texas Workers’ Compensation Retaliation Law

WORKERS’ COMPENSATION CLAIMANTS
After-Acquired Evidence

The court follows the U.S. Supreme Court’s lead in McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995)(decided under the Age Discrimination in Employment Act) and holds that when an employer discovers, after the plaintiff’s filing of a retaliation lawsuit, that there are previously unknown grounds for discharging or refusing to hire the plaintiff, this “after-acquired evidence” does not preclude a finding of liability but does limit the damages and other remedies available to the plaintiff. Assertion of the after-acquired evidence defense may stop the accrual of damages after the point in time when the employer discovered the incriminating information about the plaintiff. Johnson v. Bethesda Lutheran Homes and Services, 935 S.W.2d 235 (Tex. App.–Houston [1st Dist.] 1996)

Jul 20th, 2015 Employment Law Defense, Workers' Compensation Defense

Detrimental Reliance in Texas Employment Law

DETRIMENTAL RELIANCE

There is no separate tort cause of action for an employee’s “detrimental reliance” University of Texas System v. Courtney, May 1, 1997, No. 02-94-201-CV-Fort Worth Court of Appeals.

Jul 20th, 2015 Employment Law Defense

The Statutory Basis for Declaratory Judgment Actions in Texas Lawsuits

State: Uniform Declaratory Judgment Act, Tex. Civ. Prac. & Rem. Code Ch. 37

37.004 provides:

(A) A person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status, or other legal relations there under.

(B) A contract may be construed either before or after there has been a breach.

37.002 provides that the chapter is remedial: “It’s purpose is to settle and to afford relief from uncertainty and in security with respect to rights, status, and other legal relations; and it is to be legally construed and administered.” The Act does not create or enlarge jurisdiction. E.g., Chenault v. Phillips, 914 S.W.2d 140, 141 (Tex. 1996). Pursuant to §37.003, a declaration may be either affirmative or negative in form and effect. Thus, an insured can seek an affirmative finding of coverage, or an insurer can seek a negative determination that coverage does not exist. However, each party must still plead for relief and carry its own burden of proof. See, e.g., City of Galveston v. Giles, 902 S.W.2d 167 (Tex. App.–Houston [1st Dist.] 1995, no writ); Employers Cas. Co. v. Tilley, 484 S.W.2d 802, 806 (Tex. Civ. App.–Beaumont 1972), aff’d other grounds, 496 S.W.2d 552 (Tex. 1973) (court had no authority to order declaration against insurer in response to insured’s motion for summary judgment on insurer’s claims); Indigo Oil, Inc. v. Wiser Oil Co., 1998 TEX. APP. LEXIS 7550 (Tex. App.–Dallas 1998, pet. denied) (failure to satisfy burden is not finding of proof of opposite).
37.008 provides that the court may refuse to render a declaratory judgment if the judgment would not terminate the uncertainty or controversy giving rise to the proceeding.

Federal: Declaratory Judgment Act, 28 U.S.C. §§2201-2202

2201. Creation of remedy

(a) In a case of actual controversy within its jurisdiction, except with respect to Federal taxes . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.

* * *

2202. Further relief

Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment.

Jul 20th, 2015 Collections and Foreign Judgments, Construction Law, Contracts and Commercial Litigation, Employment Law Defense, Insurance Defense Litigation, Nonsubscriber Law

TDI Prosecutor Named for Tarrant County, Texas Insurance Fraud Claims

Specialized Expertise with Investigating, Prosecuting Insurance Fraud

AUSTIN – The Texas Department of Insurance (TDI) announced William “Doug” Wallace as a fraud prosecutor who will work exclusively with criminal prosecutors in the Tarrant County District Attorney’s Office to combat insurance fraud.

Wallace has two decades of insurance industry experience and has focused much of his professional career on special investigations and fraud as well as insurance defense, coverage and subrogation. He spent four years at Nationwide Insurance Trial Division and also served as general counsel of US Lloyds Insurance Company. He is a 2005 graduate of the University of Oklahoma College of Law. Before attending law school, Wallace spent 12 years in the insurance industry as a claims adjuster, supervisor, manager, and litigation manager.

TDI partners with district attorneys in Dallas, Harris, Tarrant and Bexar counties to provide expertise in the investigation and prosecution of insurance fraud.

For more information contact: MediaRelations@tdi.texas.gov

Jul 20th, 2015 Employment Law Defense, Insurance Defense Litigation, Nonsubscriber Law, Workers' Compensation Defense