Answers Posted By Jill J. Weinberg

Answer to My husband's work schedule was recently changed from 2nd shift to 1st shift. He has worked 2nd shift for three years, and I currently work 1st shift at my own job. Because of this sudden schedule change, we are scrambling to find child care for our childr

First, an employment law attorney will need to review the contract you mentioned, as well as any policies or other agreements including collective bargaining agreements (if a union shop) re: shift changes. Second, under Texas law, GENERALLY speaking, if an employer changes a term or condition of employment, and an employee continues to work under those new changes, the employee may be deemed to have accepted those new terms.

posted Jul 12, 2015 09:13 AM [EST]

Answer to Non payment of work accomplished as a 1099 contractor

Are you truly a 1099 contractor (for ex. do you run your own business, advertise, do work for more than one company; make your own hours of work)? Or did the company just treat you as a 1099 person? If you were improperly classified as a 1099 worker you may be entitled to more than $2000 if you worked overtime. A lawyer may help you obtain unpaid overtime. If you are truly a 1099 contractor, you may also go to small claims court and the court may provide you the forms for filing a lawsuit and offer directions for how to proceed.

posted Oct 10, 2012 1:39 PM [EST]

Answer to We get paid on the 1st and 15th of each month. Our Employee Manual states “Should payday fall

According to the TWC ( Texas Workforce Commission) web site, an employer may change the pay day to a day after a holiday.Specifically:


If a regular payday falls on a day that the employer is not open for business (weekend or holiday), and employees ask to be paid before the payday, employers sometimes worry that they might have to do that, especially since Section 61.013 of the Act provides that "[a]n employer shall pay an employee who is not paid on a payday for any reason, including the employee's absence on a payday, on another regular business day on the employee's request." The statutory provision is not a model of clarity, because it can be understood by some in such a way as if it requires an employer to pay an employee on a day of the employee's choosing. However, TWC does not interpret it that way, and thus adopted rule 40 T.A.C. sect; 821.22 that makes it clear that "another regular business day" means a day after the designated payday on which the employee is not paid. Here's the rationale behind that interpretation: logically, whether an employee "is not paid on a payday" cannot be ascertained until the payday has come and gone without the employee being paid. Thus, the regular business day that is acceptable as an alternative would have to be a day after the payday. Of course, the employer does not have to let itself be limited by that deadline – it can pay prior to the deadline, meaning that it could elect to pay the employees before the normal payday. The important thing, though, is that the employer does not have to pay before the payday.



Paydays may be changed, but it would be best to give employees advance written notice thereof setting out the next three paydays - 1) the last old payday; 2) the first new payday; and 3) the next-following new payday. That way, employees will not be able to credibly claim confusion, and the requirement of paying at least twice each month will be met.

posted Mar 6, 2012 09:19 AM [EST]

Answer to Can my employer convert all stff to Exempt to cut out our overtime?

I would need to know what type of work you do to see if you are exempt from overtime.Such asssessments are very fct sensitive. If you are not properly classfied as exempt(there are 2 components: how you are paid (hourly or salary) and what are your job duties) then you would have a valid claim for overtime. Only a court (or federal agnecy) can require your employer to comply with overtime laws.

Keep track of your overtime hours after you are converted to salary and then you can contact a lawyer to assess if you are owed overtime because you were misclassified.

posted Dec 9, 2011 12:31 PM [EST]

Answer to within rights of FMLA

There are several missing facts to your question. Did you comply with company policy about exhausting paid time off (ex. vacation pay) during FMLA? An employer in Texas can require an employee to use up such PTO simultaneously with FMLA. If there is such a policy is HR claiming you failed to follow it?
If there is no such policy, then the FMLA allows you to take unpaid FMLA leave to CARE for your child as well as recover from child birth or other related medical issues. Your caring for your child does not prevent you from traveling with your child. On the otherhand, if the child was left behind, the employer may contend you no longer needed FMLA to take care of your child and so you no longer qualified for FMLA leave (although I would not recommend an employer rely on such an argument b/c there is no requirement under FMLA that you must be with a child or other family member 24/7 to qualify for FMLA).
Did you provide a different reason for being on FMLA and the employer is contending that information is false so that is why you were terminated?

Or did the company have a layoff or eliminate your position while you were on leave? Assuming that occurred for legitimate reasons ( and not to retaliate against you for taking FMLA) then your job does not have to be held open.

Assuming no layoff, you did not violate company policies related to FMLA or misrepresent facts to your employer, and your FMLA was to both recover from child birth and care for your child (which is common but adoption is also covered) I do not see how the company can justify lawfully terminating you while on FMLA. The Federal Department of Labor is a good place to start your claim and research.

posted Oct 6, 2011 09:41 AM [EST]

Answer to No compete clause limitations?

The agreement MUST be reviewed by an employment law attorney who keeps up with the constantly changing non-compete law cases. The attorney must first determine if the agreement was properly written under Texas law. Even if the correct language is in the agreement, then there must be an analysis of the specific facts surrounding your access/knowledge of confidential information (as defined in the agreement) and how the company PROTECTED such information (under lock and key? pasword protected? labled " highly confidential? etc..
If your prospective new employer wants to hire you away, is it willing to pick up your legal fees etc. if/when you get sued for alleged violation of the (assumed) valid NC? If so, have the business agree to it in writing. If not, are you willing to shell out $10,000 to $100,000 to defend yourself?
To minimize liability,learn what your options and liablities may be BEFORE you jump ship.

posted Jul 29, 2011 2:39 PM [EST]

Answer to Is a non-compete agreement binding for a subcontractor if only the subcontractor signs it?

A document signed by one party may be enforceable under certain circumstances (such as partial performance by the other party who did not sign). Only a Judge or jury can decide based on all the facts.

Also, sometimes a party who has signed never asks for a signed copy from the other party and that is why at first glance it looks as if only one person signed. The other party may have signed it but failed to send a fully signed copy or original to the other party.

posted Jun 26, 2011 10:24 AM [EST]

Answer to can an employer charge your fmla time if you are out on a workmen comp claim?

An employer can require an employee to use up FLMA leave at the same time he/she is on workers' comp if the company follows required notices to the employee regarding your FMLA rights. If the company has not done so, contact the FEDERAL Department of Labor
(www.dol.gov).
Also, a company cannot retaliate against an employee who files workers' comp. If the company treats you more harshly then others out on NON-workers comp medical leave, it may be considered retaliatory under Texas law and you should consult an attorney who handles workers comp retaliation cases ASAP.

posted Jun 26, 2011 10:18 AM [EST]

Answer to Am i getting cheated?

Employers cannot have their cake and eat it too. If an employer wants to employ an executive (i.e., a store manager) then that person must (1)perform executive duties AND (2)be paid a guaranteed salary NOT subject to deductions based on hours worked. Indeed, that is another issue in assessing if someone is properly "exempt" as an executive under the FLSA (Fair Labor Standards Act).

Even if a store manager is properly "exempt" from overtime based on his duties, then the store manager must be paid a guaranteed salary EVEN IF in some weeks the hours actually worked are less than in other weeks. EACH work week "stands alone" (the salary for each work week must be the same) even if an employee is paid every 2 weeks.
Generally, if amount of salary for each week VARIES based on ACTUAL hours worked, then the "guaranteed salary" requirement under the FLSA is not met and the exemption is lost. If the exemption is lost, then the employee has a claim to be paid for all hours actually worked EACH week over 40 hours at 1.5 his hourly rate (so if hourly rate is $10 than the overtime rate is ($15).

Generally, an employee is paid on a salary basis if he has a "guaranteed minimum" amount of money he can count on receiving for any work week in which he performs "any" work. This amount need not be the entire compensation received,(for ex., monthly bonuses can be excluded but the salary must be at least over $455 (gross) a week. If the employee was promised more $455 per week, than the HIGHER weekly salary must be paid. However, whether an employee is paid on a salary or hourly basis is fact specific and thus evaluation of particular circumstances is necessary by employment law counsel.

posted Jun 26, 2011 10:11 AM [EST]

Answer to Can an employer take away your earned vacation time when you get fired?

The Texas Pay Day law allows you to file an administrative claim for unpaid wages (including vacation pay) with the Texas Workforce Commission
(same agency taht handles unemployment claims. You can file such a claim even if you do not have possession of the written policy. However you must file as soon as possible to be within the 180 days deadline for filing.Theyou may process is designed so that you can file without needing a lawyer
(although at some point you may wish to retain one).

posted Jun 21, 2011 04:30 AM [EST]