Bustos Law Firm

Archive for September, 2011|Monthly archive page

Payday Payback: Collecting Earned Wages from Deadbeat Employers

In Contracts, Employment, Legal, Texas Law on September 29, 2011 at 8:24 AM

It is unacceptable for an employer to not pay earned wages. Accordingly, the Texas legislature has provided avenues by which jilted employees can make life very difficult for recalcitrant employer-debtors.

Because wage disputes are usually small—one study shows the average dispute amount to be $420.00—the cost of pursuing redress through litigation usually greatly exceeds the value of the remedy sought. Texas therefore provides a cost-free administrative remedy to unpaid workers by empowering the Texas Workforce Commission (TWC) to investigate, rule on, and then enforce wage claims. Engaging this process requires little effort and education. One need only follow the instructions and complete the form found at http://www.twc.state.tx.us/ui/lablaw/ll1.pdf. These instructions include filling out the form completely and accurately, notarizing it, and then returning it to the address thereon indicated. The claim must be filed within 180 days of the date payment was originally due. (If 180 days have already lapsed, a claimant should NOT file with the TWC, as doing so may endanger a claimant’s ability to seek redress through the courts. See Igal v. Brightstar Information Group Tech. Inc., 250 S.W.3d 78 (Tex. 2007).)

The TWC then conducts an investigation, requesting information from the claimant and the employer as needed.  The investigation timelines can vary, and the TWC informs claimants of the estimated length of investigation. Upon completion of the investigation, the TWC issues a Preliminary Wage Determination Order (PWDO). If the TWC feels the employer engaged in a bad-faith failure to pay, it may assess an administrative penalty against the employer of up to $1,000.00.

After the PWDO is issued, the claimant and the employer have 21 days from the issue date to make an appeal. If neither the claimant nor the employer appeal, and if the employer fails to pay the amount determined by the TWC to be due (if any) then the PWDO becomes a final order 30 days after its issuance. The TWC’s Collections Unit then seeks recovery through a variety of avenues, such as bank account freezes and real property liens. Those employers who: (1) intend to withhold wages at the time the employee is hired; and (2) do not pay wages after a demand is made, can be subject to criminal penalties, including a two-to-ten-year prison sentence and a fine of up to $10,000.00. 

Sometimes—such as when there is a larger amount in controversy or when the TWC’s claims process has born no fruit in the past with a particular employer—an employee may instead decide to enforce a wage claim dispute through the courts. Enforcing a wage claim through the courts is the same as any other lawsuit, however, Texas legislators have likewise made efforts to facilitate this recovery process for jilted workers. The most daunting aspect of filing a civil suit is hiring and paying an attorney, yet under Texas law, the dead-beat employer can be made to pay attorneys’ fees. The Texas Civil Practices and Remedies Code §38.001 allows the plaintiff to recover attorneys’ fees if the claim is for performed labor or an oral or written contract. To recover the attorneys’ fees, the claimant must simply: (1) be represented by an attorney; (2) present the claim to the opposing party; and (3) give the opposing party thirty days to meet the demand.

Because the dead-beat employer-debtor will be footing the bill in a litigation proceeding, because of the administrative penalties the TWC may impose in an administrative proceeding, and because of the potential for criminal liability, Texas legislators have provided attention-getting incentives for employers to timely pay up; otherwise, they expose themselves to painful payback.

Texas Changes Funeral Picketing Law

In First Amendment, Texas Law on September 26, 2011 at 8:51 AM

During the 82nd regular legislative session of the Texas legislature, an amendment to the Texas Penal Code was passed that will affect the right to picket near a funeral service in the state. This law, introduced as HB 718, amends § 42.055(b) of the Texas Penal Code to further restrict the times when a person can lawfully picket a funeral.

The original provision was made effective on May 19, 2006, and made it illegal for a person to picket within “1,000 feet of a facility or cemetery being used for a funeral service” during the period beginning one hour before the service begins and ending one hour after the service is completed. As of September 1, 2011, and because of HB 718, it is a punishable offense to picket within 1,000 feet of a facility or cemetery being used for a funeral service during the period beginning three hours before the service begins and ending three hours after the service is completed. For five years, the one hour before and after a funeral service was sufficient to protect a grieving family from possible offensive picketers. What changed since 2006? Why is Texas changing the law now?

The answer: Snyder v. Phelps, 131 S.Ct. 1207 (2011), a highly controversial case decided by the Supreme Court on March 2, 2011. Matthew Snyder was an American soldier who was killed in action in Iraq. His funeral service was held in his hometown of Finksburg, Maryland. Fred Phelps, the head of the Westboro Baptist Church in Kansas, along with his fellow parishioners, decided to picket near Snyder’s funeral around the same time. The Phelps group informed local authorities in Maryland of their intent to picket near the funeral site while the funeral was taking place. They followed all local laws and restrictions, did not yell or use profanity, and were never violent.

The problem with the picketers, however, was their signs’ messages. The signs contained such statements as “God Hates the USA/Thank God for 9/11,” “America is doomed,” and “Thank God for Dead Soldiers.” Snyder’s father brought suit based on the content of the signs the picketers carried and the effect they had on him. It took a trial at the district court level, an appeal to the Fourth Circuit, and an opinion from the Supreme Court to resolve the matter. The Supreme Court concluded that Phelps and the members of his church were addressing matters of public import, on public property, in a peaceful manner, and in full compliance with the guidance of local officials. They were not liable for any harm Snyder may have suffered because their speech was protected.

While the First Amendment does afford a vast protection over free speech, states have the power to impose content-neutral time, place, and manner restrictions. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984). Texas’s HB 718 is an exercise of that power.

Currently forty-four states have laws restricting protests; some only restrict protests held near or around military funeral services. Of these, most states impose minimal restrictions on the distance that a picketer must keep between himself and the cemetery or funeral location, ranging from 300 to 500 feet. At the time of the Supreme Court’s decision, Maryland’s restriction only mandated that picketers stay 100 feet away; the state has since amended the law to impose a 500 feet restriction.

Texas, however, has one of the most restrictive laws regarding funeral picketing, imposing a 1,000 feet buffer between a funeral service and a picketer. This was true even before the amended law became effective on September 1. Perhaps the amendment to the funeral restriction was just a sign from the Texas legislature that, while the freedom of speech is a right so fundamental that even speech which is offensive or hurtful will be protected, states still have the power to protect their citizens during difficult times.

How Can My Band Find Success in the Music Industry?

In Entertainment Law, Uncategorized on September 23, 2011 at 4:18 PM

SHORT ANSWER:  Separate Your Band From the Online Clutter.

LONG ANSWER: Everyone’s fighting for our attention online. Yet many musicians believe that if they just spam enough random people online, they’ll somehow gain a large and loyal fan base. But, all you have to do is look at MySpace–a digital tumbleweed–to see that a million bands spamming each other will never be a goldmine.

It’s not good enough to just distribute your album on iTunes, set up a website with lots of bells and whistles, or even jump onboard the newest fad in the music business: Facebook’s Music Integration Platform.

Why? Because NO ONE will ever find you. The music business, now more than ever, is very crowded. Your band needs to rise above the clutter. And, while great songs are your foundation, brand identity will help drive your music home.

Case in point, everyone on the four corners of the earth recognizes the legendary album cover to Pink Floyd’s Dark Side of the Moon; it’s no coincidence it was Pink Floyd’s big break-through album. Sure, the music was killer, but the album cover helped drive Roger Water’s timeless lyrical and musical themes home with the listener. It helped sell the music, even during those rare times when it was not being blasted on the radio in all its quadraphonic glory.

Indeed, the iconic cover, depicting a ray of light split by a prism, was recently named the greatest album cover of all time in a recent poll of musicians and music fans. Will Groves of MusicRadar.com noted: “It’s proof that one simple, enduring image is the winning formula when it comes to album artwork.” And, while album artwork has become somewhat of an anachronism, the commercial and artistic success of Dark Side of the Moon continues to underscore the necessity of branding if you want to reach as many people as possible with your music.

The main reason for creating brand identity is to establish a consistent, uniform identity so that fans can remain loyal. They, like you, want to be a part of something bigger then themselves. Branding is the secret sauce to making this happen.

But it requires thought and planning. Focus on quality and appearance. Hire a graphic artist to select a distinguishing font for the band name, one that creates an indelible, even iconic, image for your band. Remember, you are responsible for your identity. Don’t sit back and wait for someone to discover you. Those days, like the album cover, are long over.

Of course, from a legal standpoint, a lot of thinking needs to be done before your band name is selected, or a logo is pressed onto hundreds of t-shirts. The world of branding revolves closely around trademark law. Never underestimate the importance of obtaining a registration for your brand with the United States Patent & Trademark Office. I will discuss the process of trademarking your band’s name and logo in my next entertainment law blog.

Don’t think branding matters? Think again. Just like with Pink Floyd’s Dark Side of the Moon, branding can help put your band over the top, but ONLY if the music is great. Thus, the real secret to making it in the music business today is focusing, first and foremost, on making quality music.

When someone finds something truly great today, they tell EVERYBODY they know. So at the end of the day, that’s how it’s done, that’s how you build an act, that’s how you build a brand….by focusing on making quality music that is so good it literally sells itself.

After all, it’s next to impossible to keep the attention of anyone (especially today’s ADD generation) with a mediocre product. Anything less than stellar is clutter in today’s musical landscape.

Be stellar…

The Paperless (Digital) Law Office

In iPad, Law Office Management, Legal Technology, Technology on September 20, 2011 at 4:41 PM

Going to a digital filing system (a.k.a. “paperless”) is easy and will pay off in a short amount of time. The largest single benefit to going digital is the ability to quickly and easily find your documents when they are needed. Less time looking for documents means more time to spend helping clients. As an added bonus, the digital files are very portable and can be easily transferred to an iPad or notebook computer for easy access on the go.

With a traditional paper filing system, a misplaced file means wasting valuable time tracking the file down. It also means that only one person can use it at a time. With a digital system, the file is always where it needs to be and can be accessed by more than one person at the same time.

A paper based filing system is more vulnerable to error. What happens when a document is misfiled? When something has not yet found its way from the inbox to the file? In those situations, the search for the missing document involves much of the same methodology as searching for a needle in a haystack. All the other files (and attorneys’ offices) have to be combed through to find the one missing document. If set up properly, a digital system will minimize the effect of misfiled documents as all documents in the system should be word searchable. That means the physical search for the missing document that once took half a day can now take a matter of minutes by using the computer’s built in search feature.

Setting up a digital filing system is easy and inexpensive. Most people think of a digital filing system as being completely different than a paper filing system. The system that we implemented is as close to a replica of a paper filing cabinet as we could make. The main folder in our system is called the “Filing Cabinet,” and each client has their own folder with sub-folders that are identical to what was in the paper files. For instance, in our litigation matters, we have a template which includes folders for correspondence, discovery, drafts, expert witnesses, information received from clients, invoices, notes & memos, pleadings, and research. All incoming paper is scanned, named according to our naming convention, emailed to the appropriate attorney and staff member and filed in the appropriate location in the system.

We use a Fujitsu ScanSnap Scanner (currently costs about $400-450) and Adobe Acrobat Standard (free with the scanner) to scan all our documents to .pdf files. Acrobat has an optical character recognition feature, which automatically recognizes the text and makes the documents keyword searchable. Our documents are all named with the date and a short description of what the file contains. The date comes first, so the file is automatically organized in chronological order. (“2011.09.02 Digital Filing System Blog Entry”). After using this system for about two months, we have made some small tweaks in the workflow, but all in all, it has been a simple system that everyone in the office is comfortable using. We have found that we are spending less time searching for information and more time working to provide cost-effective solutions to our clients’ problems, which is what practicing law is really all about.

The Bottom Line on the Latest ICE Memo on Prosecutorial Discretion

In Uncategorized on September 6, 2011 at 2:37 PM

There has been a lot of hoopla about the recent prosecutorial discretion Memos issued by ICE Secretary John Morton, as well as the White House announcements regarding the same on August 18, 2011.

Under the new initiative, some 300,000 immigration court cases will be reviewed. Low-priority cases may get dismissed, enabling the courts to focus on deporting the high priority – “criminal aliens.” All new incoming cases will be reviewed as well, with the possibility of low-profile cases not being filed with the immigration court at all. Some immigrants may even be eligible for work permits.

After this announcement, many immigrants, immigration attorneys, and immigration activists saw what they thought might be the proverbial light at the end of the tunnel. But, the fact of the matter is that Morton’s memo does not change the law in any way, shape, or form. It is simply considered a compilation of old Memos, with no chance of ever seeing the results it promises.

Why? Because what the Memo proposes is unworkable in the real world. To wit, viewing the situation from the perspective of a government bureaucrat, if there is no tangible incentive for ICE employees to apply this Memo, nothing will indeed change. And, by incentive, I mean getting rid of numbers as the only yardstick for measuring the effectiveness of ICE Officials. In the alternative, ICE should focus on engaging in smart law enforcement where its employees are rewarded for successful application of law enforcement priorities.

Those in charge of implementing this new initiative are career ICE prosecutors, deportation officers and administrators. Until now they have been promoted on the basis of how many folks they arrest, detain, and deport….and how fast. Being “bad guys” has been good for their careers.

Now, suddenly, they are being told to be “good guys?” If I am an ICE bureaucrat, my first question will be: “How will I be rewarded for moving a case from the ‘deport’ pile over to the ‘back burner’ pile?” Until that question is answered very clearly, little or nothing will change, and the policy will be seen as nothing more than a blatant election-cycle play for the Latino vote. For this to work, ICE bureaucrats will need to know they will be rewarded and protected if they take a DREAM Act-eligible student out of the deport queue.

In the words of an ICE official, “If you don’t give me a peg to hang my hat on, I’m going to be doing the same thing as before.” The Obama administration has not given its employees a real peg to hang their hat on, if you will. And, don’t expect one to come any time soon either. After all, the administration got the publicity it wanted, so who cares about the rest? Now it’s up to immigration attorneys to explain to numerous clients asking us about the new, “Obama law.” The Bottom Line: Nothing will change, there is no light at the end of the tunnel, and immigrants, now more than ever, need to watch out for unscrupulous characters who will undoubtedly take advantage of an already vulnerable population.

Employment Law Update

In Employment, Texas Law on September 1, 2011 at 10:39 AM

++This memo summarizes recent developments in Texas employment law during the spring and summer of 2011.

ADA (Americans with Disabilities Act)

  • Medical Certifications

Under the ADA, an employer can request a medical examination or make a medical inquiry, but it must be related to the job and supported by business necessity. The point of the exam must be to determine whether the employee can perform her duties after the employer identifies a legitimate reason to doubt her capacity to do so. The bottom line is that employers must have a legitimate reason before requesting a return-to-work medical exam. Examples of cases in which an employer was found not to have violated the ADA: (1) One court found that it would be “grossly negligent” for an employer not to order a psychiatric examination when an employee makes serious workplace threats; (2) An employer was within its rights to require a medical examination when the job required driving and the employee disclosed a condition that required medications that could impair the ability to drive.

  • Definition of Disability Broadened Under ADAAA (ADA Amendments Act of 2008)

Previously, to establish a disability, an employee had to show not just that he had an impairment, but that the impairment stopped him from leading a normal life (i.e. affected his ability to perform daily activities). That high standard has been wiped away. An employee can now establish that his disability is covered by the ADAAA, even if the only major life activity that is substantially affected is normal cell growth. A Texas federal trial court recently decided this issue and relied on the Equal Employment Opportunity Commission’s (EEOC) recent promulgation of regulations interpreting the ADAAA, which became effective May 24, 2011. The EEOC regulations provide that certain impairments, because of their severity, will almost always result in a determination of an actual disability. And, not surprisingly, cancer is one of them. Managers must be trained to understand that the definition of disability is so broad under the ADAAA, conditions that once seemed as if they were common impairments will now be covered. Managers don’t need to understand the details of the amendments, but when an employee says (a) I have this medical condition and (b) it causes limitations, they should get HR involved immediately.

FMLA (Family Medical Leave Act)

  • Care Defined

An employee brought suit against his employer after he was fired because he missed work to prepare his home for the return of his daughter, who had recently sustained serious head trauma. The employee was at home by himself, and the daughter was in the hospital in another state with her mother. The employee claimed he was “caring” for his daughter because of the work he was doing in the house and that he was in constant telephone communication with her and his wife. The federal court of appeals that covers Texas decided this constant telephone communication was not enough and that under the FMLA, “caring” for a family member with a serious health condition contemplates being in close physical proximity to that family member. The court talked about two other cases in which there was a “to care for” element. In one of those cases, the court said it could be a violation of the FMLA to fire an employee who stayed home with three healthy children for two days while his wife cared for a sick child in the hospital. In the other, the court said it could be a violation of the FMLA to terminate an employee because she returned home to take a nap after spending the entire day with a sick child. As the court noted, in neither case was the caregiver out of state for weeks at a time.

  • Unexcused Leave Grounds for Termination Under FMLA

In another case decided by the same court of appeals, an employee was granted intermittent leave because he had a serious health condition. He used this leave for unplanned absences and scheduled leave. After the employee had missed a number of days in one month, his employer placed him on full-time FMLA leave until his physician authorized his return or he exhausted his leave. After this, the employee called in sick five days in a row. This prompted his employer to look at his attendance record. Upon review, his employer discovered that the employee’s non-FMLA absences had exceeded the permissible limit in the leave policy. The employer fired the employee, and the employee sued for FMLA retaliation. The trial court threw the case out, and the court of appeals said it was right to do so. The employer won because it fired the employee not because he sought to use FMLA leave, but because his non-FMLA absences were excessive. It was those absences that had a negative effect on the office’s productivity. This case underscores an important principle: Whenever an employer terminates an employee for absenteeism, it should double-check to make sure none of the absences he is counting toward termination are FMLA-covered. If they are and the employer decides to terminate the employee anyway, the employer will be violating the FMLA. This case also underscores the point that absences that aren’t FMLA-covered can form the basis of discipline.

  • Temporary Impairments

A federal trial court in South Texas recently refused to dismiss a case based on the issue of whether the employee was entitled to FMLA leave to care for her adult daughter, who was injured in a car accident. The employer argued that the daughter was not “incapable of self-care because of a physical disability,” which is required for an employee-parent’s eligibility for protected leave to care for an adult child. However, evidence indicated that the daughter still needed assistance with grooming, hygiene, bathing, dressing, and eating, and was therefore incapable of self-care. Evidence also showed the daughter was disabled. In this regard, the court looked to the recently amended ADA, which now provides that temporary or non-chronic impairments can be disabilities. Moreover, the daughter was substantially limited in the major life activity of walking, among other things, during her mother’s leave period.

  • Medical Certification

The FMLA allows an employer to require an employee to provide a health provider’s certification supporting the employee’s request for FMLA leave. If the employee fails to provide a certification, the employer may deny leave. In one recent case, the employer requested a medical certification from the employee, and the plaintiff provided a letter from a physician stating that the plaintiff suffered Post-Traumatic Stress Disorder and was unable to return to work. However, the letter failed to include the date on which the employee’s condition began and the probable duration of the condition. The employer then requested a further certification that would include the missing information. The employee did not provide a timely certification with all the necessary information. The court ruled that the employer was authorized to terminate the plaintiff’s employment under these circumstances.

Absenteeism

According to CareerBuilder’s latest annual survey on absenteeism, 29% of workers took a faux sick day in 2010. A similar share of employers, 27%, thought they were seeing a rise in employees calling in sick when they were actually well, possibly from “stress and burnout caused by the weak economy.”

FLSA (Fair Labor Standards Act)

  • Retaliation

The U.S. Supreme Court said earlier this year that employees may sue for retaliation under the FLSA. The Supreme Court held that the FLSA anti-retaliation provision protects an oral complaint about FLSA violations, provided the complaint is “sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a class for their protection.”

  • Statute of Limitations

The FLSA’s statute of limitations varies depending on whether a violation was “willful.” If the violation was willful, a three-year statute of limitations applies, but if the violation was not willful, a two-year statute of limitations applies. A separate FLSA remedial provision states that a district court may decline to award liquidated damages if the employer proves it acted in “good faith” and had “reasonable grounds” to believe its actions complied with the FLSA.

Title VII Retaliation

The Fifth Circuit held that an employee’s request to her employer for a copy of a sexual harassment complaint she made against another employee four years earlier (and had declined to pursue) did not qualify as “opposition” to unlawful employment practices under the Title VII retaliation provision. The employee admitted that her motivation in requesting the documentation was to find another position within the employer’s workforce. Therefore, no reasonable jury could find that she made the request in order to “confront, resist, or withstand any long ago discriminatory practices” by the employer.

Sex Discrimination

The U.S. Supreme Court recently ruled in favor of Wal-Mart, the nation’s largest private employer, in a massive law suit that has been called the largest employment class action in U.S. history. The class of plaintiffs in the case included approximately 1.5 million female former and current Wal-Mart employees seeking relief that could have amounted to billions of dollars in back pay. Although the case involved alleged sex discrimination, the Court wasn’t asked to decide whether it occurred. Rather, the Court’s decision was limited to whether the suit could be handled as one massive class-action case. In what could be called a unanimous decision, the justices all held that the case shouldn’t proceed as a class action; however, they were divided in their reasoning. One of the lessons to be taken away from this decision is that for employees to be able to file their claims as a class, they have to show a high level of “commonality” between their claims. They are going to have to be able to demonstrate that they “have suffered the same injury” (e.g., “significant proof that an employer operated under a general policy of discrimination”).

Pregnancy Discrimination

Employment law requires employers to make individualized determinations. The case law says that if an employee makes a decision to put herself in harm’s way in performing her job, the employer cannot stop her.

USERRA (Uniformed Services Employment and Reemployment Rights Act of 1994)

The federal court of appeals covering Texas recently ruled that the USERRA does not create a free-standing cause of action for hostile work environment military service harassment.

Evidence of Discriminatory Intent

The “cat’s paw” theory was recently endorsed by the Supreme Court in a USERRA case. Under the cat’s paw theory, an employer may be liable for the action of a decision maker who was not motivated by illegal intent, if the decision maker was partly influenced by another supervisor who was motivated by illegal intent.

Non-compete Law

  • Money as Consideration

On June 24, 2011, the Texas Supreme Court rewrote Texas non-compete law. While the court’s opinion answers many questions, it leaves some still unanswered. The change is radical. Before: An employer could have a non-compete agreement with employees if he gave them something of value. That “something of value” could be his confidential information. After: Now it appears that money can buy a non-compete.

The case the court addressed involved an employer who gave his employee an option to buy 500 shares of stock in the company and the employee agreed to accept the stock options. However, the option agreement also provided that if the employee left the company within three years after exercising the options, he couldn’t compete with the employer for two years after the termination of his employment. The employee signed the agreement, subsequently left, and then got sued by his former employer. The Texas Supreme Court said the stock options were sufficient consideration. The court’s reasoning was that giving an employee stock options makes him work harder; employees who work harder create greater “goodwill” for their employer. That goodwill is deserving of protection (because it was bought and paid for) and a non-compete can be that protection. The supreme court did not decide whether cash would be sufficient to buy a non-compete, but it said that the business interest being protected (that is, goodwill) has to be “reasonably related” to the consideration being given. Cash would most likely do it. The question then becomes how much money and when. The court answered the “when” part by saying that past consideration can suffice: “There is no requirement under Texas law that the employee receive consideration for the non-compete agreement prior to the time the employer’s interest in protecting its goodwill arises.”

The prediction: Money will do it in the form of a signing bonus when someone first comes onboard or as a bonus while he is currently employed. The amount of money needs to be significant enough that the employer can argue the employee was “incentivized” to go out and create goodwill. Of course, an employer can still use confidential information as consideration, but money makes it easier to enforce a non-compete.

  • Employment at Will

According to the Dallas Court of Appeals, a trial court erred in denying an employer’s request for temporary injunctive relief against two hairstylists who allegedly breached an agreement not to solicit customers or divulge “trade secrets.” The trial court denied such relief strictly on the ground that the employment was at will, but it is now clear after the 2006 Texas Supreme Court case Alex Sheshunoff Management Services, L.P. v. Johnson, that it is possible for parties to agree to an enforceable covenant not to compete in employment that is at will, provided other requirements are satisfied.

Jury Waivers

An employee had signed a mutual waiver during his time of employment that waived his right to a jury should a dispute between him and his employer arise. He later sued his employer for age discrimination and demanded a jury trial. The trial judge denied the employer’s motion to toss the jury demand. The Fort Worth Court of Appeals agreed, but the case is now before the Texas Supreme Court. The Texas Constitution says that the right to a jury trial shall remain “inviolate.” But what the law says is not always what the constitution means.

Prediction: The supreme court will agree with the employer and hold the employee to his promise to forgo a jury.

Legislation

Senate Bill (SB) 1024 amended the Penal Code Section 31.04. The law now says that an employer violates the law if it fails to make “full” payments after a demand for compensation. The legislature also added a section stating that “partial payment” of wages is not a loophole. Also, if the employer pays the employee on a periodic basis, the intent to avoid payment for his services can be formed at any time during or before a pay period. This section also applies to independent contractors.

SB 321, which will take effect September 1, 2011, will allow an employee who holds a license to carry a concealed handgun or who otherwise lawfully possesses a firearm to bring it onto an employer’s property. Property includes any parking lot, parking garage, or other parking area an employer provides for employees. The weapon must be in a locked, privately owned motor vehicle. There are some exceptions. First, if the car is owned or leased by a public or private employer and used by the employee in the course of her duties, then the law is inapplicable. An employer may still prohibit an employee from possessing a weapon on business premises other than the parking lot. There’s also a section of the law that holds the employer immune from lawsuits except in cases of gross negligence. This means that if the gun is used to harm someone at work, the employer is off the hook. Also, the law does not impose a duty on employers to inspect parking lots, garages, or other parking areas to confirm or determine if employees are complying with the laws relating to the ownership or possession of firearms or ammunition. Employers should create a policy or amend one they already have to let employees know they may bring firearms to the workplace – but only if the firearms are kept locked up in their cars. Such a statement will allow the employer an opportunity to reiterate that they are still forbidden from bringing a firearm on business premises.