Question 1

WHEN DOES A TEXAS EMPLOYER HAVE TO PROVIDE THE FINAL PAYCHECK TO A DEPARTING EMPLOYEE?

Accepted Answer

Texas Payday Law requires employers to provide the final paycheck to an employee within 6 days if the employee was fired or by the next regularly scheduled payday if the employee quit his/her job.

Question 2

AS A TEXAS EMPLOYER, WHY DO I NEED AN EMPLOYEE POLICY MANUAL?"

Accepted Answer

1. To let your employees know what the expectations are in your workplace, such as your attendance requirements, who pays for the ticket your employee receives while driving a company vehicle, how many vacation days will your employees receive, and are you going to test for drugs or alcohol if an employee provides you with reasonable suspicion that he/she is high. 2. To protect your business from allegations in sexual harassment suits, discrimination claims, claims that you have not paid overtime correctly, claim that you owe a former employee unpaid vacation days, and the other types of claims that disgruntled employees frequently file. Often a written policy is the best evidence to support your story when you are on the defensive. 3. To protect your business from unemployment claims. The Texas Workforce Commission will not award unemployment benefits to an employee who committed "misconduct", which means "violation of a company policy or rule adopted to ensure the orderly work and safety of employees".  4. To help you be consistent in your actions so you won't be accused of discrimination.

Question 3

CAN I REQUIRE MY TEXAS EMPLOYEES TO USE DIRECT DEPOSIT FOR PAYCHECKS?

Accepted Answer

Yes, if you do the following: 1. Do not allow a bank to charge the employee's account for the direct deposit if it would take your employee below minimum wage ($7.25 per hour) on any paycheck. If the bank charges, the company needs to pay that charge rather than the minimum wage employee. 2. Many employees don't have a checking account at a bank or credit union. If that is the case, you'll need to help the employee open a checking account at a bank of the employee's choice. 3. If you choose to change your payroll method, you need to give all of your employees 60 days notice before making the change. 4. If you decide to use a debit or payroll card to pay your employees rather than direct deposit, you must get written permission from each employee.

Question 4

CAN I DRUG TEST MY TEXAS EMPLOYEES?

Accepted Answer

Yes. Most employers test applicants (once the job offer has been made), after an on the job accident if it appears that impairment may have been a factor, whenever there is reasonable suspicion that the employee is impaired by drugs or alcohol, and randomly (names selected by a computer program or the testing facility).    Before testing, you need a written drug and alcohol testing policy in your handbook, the signed acknowledgement from your handbook for that employee, and a written consent form that you should have each new employee sign (many testing facilities will provide these at the time of the test, but it is better to have it already signed before it is needed).

Question 5

IS MY TEXAS COMPANY SUBJECT TO ALL OF THESE EMPLOYMENT LAWS?

Accepted Answer

Compliance with the myriad federal and state employment laws is usually based on number of employees on the payroll (including full-time, part-time, temporary). You can usually count the number of names who receive a paycheck of any kind during a payroll and figure out if you have to comply with the employment laws. Here are some of the major laws with which you should be concerned:   1. Title VII of the Civil Rights Act of 1964 (federal law) and Texas Labor Code Chapter 21 cover employers with at least 15 employees on the payroll. It protects against discrimination on the basis of race, color, gender, national origin, and religion. Texas also inludes age and disability in its protection under Ch. 21. Federal law protects age, disability and genetic information with separate laws that were passed after 1964. 2. Pregancy Discrimination Act of 1978 prohibits an employer with at least 15 employees from treating pregnant women (or those who just had a child) less favorably than employees with other medical conditions. 3. The Immigration and Reform Act requires employers with at least 4 employees to complete an I-9 form on each employee at time of hiring to assure that the employee is eligible to work in the United States. 4. The U.S. Bankruptcy Code prohibits an employer with any employees from discriminating on the basis of an employee filing for bankruptcy. 5. The Civil Rights Act of 1866 covers all employers with even 1 worker (including an independent contractor) and prohibits an employer from discriminating on the basis of race or color. 6. Texas Worker's Compensation Act protects all employees regardless of size of employer from being discriminated against on the basis of worker's compensation history (in other words, never ask about worker's compensation history). 7. The Fair Labor Standards Act, which requires an employer to pay overtime and minimum wage, determines employer size by commercial revenue and interstate commerce. If you have a business enterprise which has an annual gross revenue of at least $500,000, you have to comply with the FLSA. Even if your business doesn't generate annual gross revenue of at least $500,000, individual employees who affect interstate commerce (they use the mail, internet, shop for office supplies, or otherwise deal with commerce) are subject to the FLSA and you must comply with its stringent overtime and minimum wage requirements as to those particular employees.  8. COBRA requires employers with at least 20 employees to allow employees to continue their health insurance coverage on the group plan (with the employee paying the premiums) after termination of employment or a reduction in hours. A similar Texas law requires employers with at least 2 employees to allow continuation for at least 6 months with the employee paying the premiums.  9. The Occupational Health and Safety Act (OSHA) requires employers with at least 1 employee to generally provide a safe workplace. Companies in specific industries have much higher safety requirements under OSHA.  10. The Family and Medical Leave Act requires employers with 50 employees to provide 12 weeks of unpaid leave for the birth or adoption of a child, the employee's or his family member's serious health condition, and servicemember's family members who need time as the servicemember is deployed or returns injured.  11. The Affordable Care Act requires employers who have at least 50 full-time equivalent employees (not counted by names on the payroll but by hours worked) to provide health insurance to full-time employees or pay a penalty.  12. As of September 1, 2021, Texas employers with just one or more employees are subject to Texas law prohibiting sexual harassment.

Question 6

WHAT DOCUMENTS MUST A NEW EMPLOYEE FILL OUT?

Accepted Answer

There are several new hire documents that are helpful to a Texas employer, such as an emergency contact form, drug testing consent forms, and benefits enrollment forms. However, there are three forms that are required by law for you to get a new employee to fill out: 1. The W-4 form showing how the employee wants his/her taxes deducted from paychecks. 2. The I-9 employment eligibility form, which demonstrates that the employee is eligible to work in the United States legally. This form must be completed and proper documents presented to verify identity and eligibility within 3 days of the employee's start date or the employee cannot continue to work for the company. There are many ways to mess up the completion of this form, so make sure you have a well-trained HR person monitoring this process. 3. The Texas new hire form, which alerts the state to changes of employment for purposes of collection of child support. This must be sent into the state within 20 days of employment.

Vicki Hart Wilmarth, Attorney at Law

Wright Wilmarth Byrd, PLLC