San Antonio Employment Law Blog : San Antonio Employment Lawyer & Attorney : Thomas Crane Law Firm : South Texas, Bexar County TX Wage & Discrimination Issues

In Texas, unemployment benefits are awarded to employees who lose their job through no fault of their own.  That is the general rule.  It is one area in Texas employment law where fairness carries some weight.  The process starts when the employee files a claim for benefits.  Texas Workforce Commission will then request a statement from the employer.  Some employers choose not to respond, in which case TWC will award benefits. 

If the employer responds with information indicating that the employee's termination was due to some misconduct by the employee, then TWC will set the claim for a telephone hearing.  The employee may have evidence corroborating key points.  If so, s/he must provide copies of the evidence to the employer and to the TWC judge prior to the hearing.  The hearing notice should include contact information for the employer or the employer's representative. 

The employer may hire a lawyer for the hearing.  More often, the employer will rely on its Human Resources department to serve as representative.  

The employee must satisfy some technical requirements to be awarded benefits.  I am not aware of the specific requirements.  The website, Can My Boss do That? contains some general information regarding those requirements.  In General, the employee must have worked for the employer for some period of time and must have earned a certain level of money to qualify for benefits.  TWC states on its website that the applicant must have earned sufficient amounts of pay in four of the five preceding quarters.  

Can my boss do that? discusses one situation where they suggest you will be disqualified for benefits: if you testify that you quit due to stress, then you will lose benefits.  That may be true, since resignation usually does disqualify a person for unemployment benefits.  But, if you can show that you quit for medical reasons, you might still win benefits.  TWC judges are sometimes sensitive to disability issues.  

It is difficult to find a lawyer to represent an employee at a TWC hearing.  Employers and, I suspect, TWC do not want employees to be represented at such hearings.  There is no mechanism for lawyers to be paid if they represent an employee.  And, of course, an employee who has just lost his job will have little money available to hire a lawyer. 

In fact, even keeping benefits once they have been awarded is a challenge.  The employee is required to call in once a week to certify s/he has looked for work that week.  If you do not call in, you will not receive benefits for that week.  The phone line is very busy.  I have heard from a couple of clients that they could not get through the busy signal for one or more weeks.  So, they missed benefits one or more weeks.  It i almost as if TWC was trying to keep the employe from receiving his/hr benefits once they have been awarded. 

And, of course, it is hard to believe but the former head of appeals for TWC was offering advice to employers in 2010 on how to deceive employes and avoid paying benefits.  See my prior post.  The Texas unemployment benefit process is not employee friendly.  But, it is possible to appear at a hearing and win.  The employee will have to plan ahead and think carefully about what you want to to tell the judge at the hearing.  You also need to consider carefully the questions which you wish to ask key witnesses. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Texas Workforce Commission appears almost designed to undermine legitiimate employee claims for unemployment benefits.  I receive one or two calls every year from recipients of unemployment benefits who were overpaid unemployment benefits through TWC errors and now, TWC wants their money back.  TWC essentially tells them to pay it back or else.  

One young man called me from out of state saying he did disclose his part-time job.  TWC continued to pay him benefits.  Then, after many months, they realized their error and threatened him with suit if he did re-pay some $7,500 in overpaid benefits.  I had to explain to him that it would cost him close to $7,500 to pay me to represent him regarding this error. 

More, recently, I heard from a woman who was paid some $14,000 in benefits erroneously, but not erroneously.  That is, when she was hired for a job, she signed an agreement saying she would not apply for unemployment benefits if she was ever fired.  Well, she was fired after a few years.  She applied for unemployment benefits and received them.  TWC later found she was not entitled to benefits.  They accused her of fraud and demanded she re-pay the benefits.  She eventually had a telephone hearing and this time, TWC found the employer at fault.  So, the fired employee should receive unemployment benefits, after all. 

So, now she is eligible for benefits.  But, TWC will not pay her benefits unless she first re-pays the $14,000.  Of course, she is unemployed and does not have an extra $14,000.  Talk about Catch-22.  To get benefits, she must first re-pay the benefits to which she was entitled, after all.  Makes my head spin....

I helped a lady with an unemployment claim appeal last year.  She was required to call in each week to "register" for benefits.  If she did not call in, she would not receive benefits that week.  She called into TWC over and over for two weeks and could never get through.  The line was always busy.  Since she could never get through, she was never able to collect unemployment for those two weeks.  She appealed.  She testified that she could never get through.  There was no testimony to the contrary.  But, the TWC judge ruled against her on that one issue. 

The lady with the $14,000 issue had the same experience.  She tried to get advice from TWC regarding this issue in December and January and never could get past the busy signal.  She finally reached someone in February. 

I previously wrote about the appeals division at TWC.  I talked about the head of the appeals division at TWC advising employers on how to "game the system."  The head of the appeals division told employers at a conference that they could avoid unemployment claims through subterfuge.  See prior post.  So, yes, it almost appears that TWC is a system designed to avoid paying valid claims for unemployment benefits.  Same old, same old.....

• Email This
• Print
• Comments (3)
• Trackbacks
• Share Link

The new head of Texas Workforce Commission Civil Rights Division is Jonathan Babiak.  Some readers may remember him as the former head of the appeals division at TWC.  He advised employers last Spring on how to game the system regarding unemployment claims.  See Houston Chronicle report.  Mr. Babiak told employers at a TWC hosted conference in Houston that they could give terminated workers the opportunity to resign.  If an employee resigns, s/he may falsely believe they have no chance to obtain employment benefits.  As Mr. Babiak explained, they will think they are not eligible for benefits and will probably not even file a claim.  I previously wrote about Mr. Babiak here.  He was removed from his position after the flap that followed his advice to employers. 

The agency is called the Texas Workforce Commission.  It used to be called the Texas Employment Commission.  It was never called the Texas Employers' Commission.  It is supposed to be nuetral regarding unemployment claims.  That is because it is the same agency that processes claims and then later hears disputes about unemployment claims.  Mr. Babiak was the head of their appeals division until this past Summer.  

Now, he heads the Civil Rights Division.  The CRD investigates claims of discrimination.  The CRD is the state equivalent of the Equal Employment Opportunity Commission.  I hope he has picked up a little more balance. 

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

It takes months for Texas Workforce Commission to complete an investigation of a wage claim.  See San Antonio Express News story.  TWC enforces the Texas Payday Statute and other laws.  They also investigate wage claims.  They receive 14,000 claims each year by workers who were not paid. But, as I have explained to many potential clients, do not expect much from TWC.  

Even if they conduct an actual investigation, they typically do nothing more than send a letter to the employer finding that the employer owes a certain amount of unpaid wages.  But, TWC does some good for workers.  In 2009, they found 5,977 claims to be valid and collected $4.7 million in unpaid wages.  See TWC's summary of the Texas Payday Statute here.  Note that contrary to frequent practice, the employer is not authorized to deduct items from a worker's paycheck or commissions unless the deduction is authorized by law or by signed agreement of the worker.  

Texas workers can also file a claim with the Department of Labor, Wage & Hour Division if the claim involves violation of minimum wage or overtime violations. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A frequent issue arises concerning the right of an employer to deduct debts from an employee's paycheck.  Texas Workforce Commission recognizes three occasions when an employer may make such deductions: 1) in response to an order from a competent court, such as for child support; 2) state or federally mandated withholdings; and 3) when authorized in writing by the employee.  See TWC info.  

So, for example, when the employee owes payments on a loan to the employer, the employer may not deduct those payments from the paycheck.  Even if the employer has a signed loan agreement, the employer may not deduct those payments without written authorization from the employee.  

But, the other shoe is that TWC will probably do nothing more than send letters to the employer finding them at fault.  I have personally never heard of TWC taking stronger steps than sending letters to the miscreant employer. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link