Ask a Lawyer, David L. Leon, Attorney, Dallas, Texas (214) 696-0021 » employment http://leonlaw.com/askalawyer Frequently asked questions about Texas law from David Leon, Attorney, Dallas, Texas, (214) 696-0021 Sat, 02 Jan 2010 03:37:30 +0000 http://wordpress.org/?v=2.9.2 en hourly 1 How long does an employee have to file a wage claim? http://leonlaw.com/askalawyer/2009/03/08/how-long-does-an-employee-have-to-file-a-wage-claim/ http://leonlaw.com/askalawyer/2009/03/08/how-long-does-an-employee-have-to-file-a-wage-claim/#comments Mon, 09 Mar 2009 04:46:31 +0000 David Leon http://leonlaw.com/askalawyer/?p=410 An employee has 180 days to file a wage claim with the Commission. (Texas Labor Code Sec. 61.051). If there is an employment contract in place, there may be additional causes of action falling under the two and four year statutes of limitation.


]]> http://leonlaw.com/askalawyer/2009/03/08/how-long-does-an-employee-have-to-file-a-wage-claim/feed/ 0 An employee owes an employer money. May an employer withhold wages from an employee without a written contract? http://leonlaw.com/askalawyer/2009/03/08/an-employee-owes-an-employer-money-may-an-employer-withhold-wages-from-an-employee-without-a-written-contract/ http://leonlaw.com/askalawyer/2009/03/08/an-employee-owes-an-employer-money-may-an-employer-withhold-wages-from-an-employee-without-a-written-contract/#comments Mon, 09 Mar 2009 04:45:09 +0000 David Leon http://leonlaw.com/askalawyer/?p=409 Typically, no. Labor Code Sec. 61.018. states:

“An employer may not withhold or divert any part of an employee’s wages unless the employer:

(1) is ordered to do so by a court of competent jurisdiction;
(2) is authorized to do so by state or federal law; or
(3) has written authorization from the employee to deduct part of the wages for a lawful purpose.”

Typical exceptions to this rule are contracts between employer/employee allowing for the deduction of expenses, court ordered child support obligations or court ordered restitution.


]]> http://leonlaw.com/askalawyer/2009/03/08/an-employee-owes-an-employer-money-may-an-employer-withhold-wages-from-an-employee-without-a-written-contract/feed/ 0 What is ERISA? http://leonlaw.com/askalawyer/2009/03/08/what-is-erisa/ http://leonlaw.com/askalawyer/2009/03/08/what-is-erisa/#comments Sun, 08 Mar 2009 23:47:47 +0000 David Leon http://leonlaw.com/askalawyer/?p=386 ERISA is a federal law that stands for the “Employment Retirement Income Security Act” of 1974. This law is designed to protect retirement, pension and 401(k) plans.

ERISA requires employer plans to provide subscribers with specific information (such as disclosures about plan benefits and how the plan is funded). This law also assigns fiduciary responsibilities for those who manage and control plan assets.

Finally, the Act requires such plans to establish a grievance and appeals process for subscribers/employees and gives employees the right to sue for denials and breaches of fiduciary duty by plan administrators.


]]> http://leonlaw.com/askalawyer/2009/03/08/what-is-erisa/feed/ 0 What is a “work for hire”? http://leonlaw.com/askalawyer/2009/03/06/what-is-a-work-for-hire/ http://leonlaw.com/askalawyer/2009/03/06/what-is-a-work-for-hire/#comments Sat, 07 Mar 2009 02:18:49 +0000 David Leon http://leonlaw.com/askalawyer/?p=371 A “work for hire” (also known as a “work made for hire”) is doctrine of intellectual property law governing ownership of material. The premise is that if a person or company hires another to create something under a work for hire arrangement, the person who hired the creator is the owner of the work. For example, let’s suppose Company A hires Joe Programmer to write a piece of software under a work for hire arrangement. The end result is that Company A owns the software, Joe does not.


]]> http://leonlaw.com/askalawyer/2009/03/06/what-is-a-work-for-hire/feed/ 0 What is business insurance planning? http://leonlaw.com/askalawyer/2009/03/06/what-is-business-insurance-planning/ http://leonlaw.com/askalawyer/2009/03/06/what-is-business-insurance-planning/#comments Sat, 07 Mar 2009 01:27:22 +0000 David Leon http://leonlaw.com/askalawyer/?p=356 Business insurance planning includes insurance against the loss of a key person who is vital to the survival of a business. This type of policy can be used to inject cash into a business in order to survive while you replace the lost person. It can also cover buy/sell agreements, allowing the surviving member of the business to buy out the deceased member’s interest. Other types of insurance planning include wholly owned or captive insurance companies, umbrella insurance policy planning and commercial liability. Contact Us for more information.


]]> http://leonlaw.com/askalawyer/2009/03/06/what-is-business-insurance-planning/feed/ 0 What is sexual harassment? http://leonlaw.com/askalawyer/2009/03/06/what-is-sexual-harassment/ http://leonlaw.com/askalawyer/2009/03/06/what-is-sexual-harassment/#comments Sat, 07 Mar 2009 01:22:16 +0000 David Leon http://leonlaw.com/askalawyer/?p=350 Sexual harassment may involve different things. The two most common types of sexual harassment cases involve quid pro quo (exchanging a sexual favor for employment perks) and hostile working environment.


]]> http://leonlaw.com/askalawyer/2009/03/06/what-is-sexual-harassment/feed/ 0 I’m still confused about this independent contractor vs. employee determination. Can I ask the IRS for a determination? http://leonlaw.com/askalawyer/2009/01/18/im-still-confused-about-this-independent-contractor-vs-employee-determination-can-i-ask-the-irs-for-a-determination/ http://leonlaw.com/askalawyer/2009/01/18/im-still-confused-about-this-independent-contractor-vs-employee-determination-can-i-ask-the-irs-for-a-determination/#comments Mon, 19 Jan 2009 02:47:53 +0000 David Leon http://leonlaw.com/askalawyer/?p=98 Yes! The IRS has  Form SS-8, Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding


]]> http://leonlaw.com/askalawyer/2009/01/18/im-still-confused-about-this-independent-contractor-vs-employee-determination-can-i-ask-the-irs-for-a-determination/feed/ 0 What does the IRS consider when determining whether or not a person is an independent contractor? http://leonlaw.com/askalawyer/2009/01/18/what-does-the-irs-consider-when-determining-whether-or-not-a-person-is-an-independent-contractor/ http://leonlaw.com/askalawyer/2009/01/18/what-does-the-irs-consider-when-determining-whether-or-not-a-person-is-an-independent-contractor/#comments Mon, 19 Jan 2009 02:33:53 +0000 David Leon http://leonlaw.com/askalawyer/?p=89 The IRS uses three main criteria when determining whether or not someone is an employee or independent contractor.

From the IRS.gov website:
Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?

Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)

Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?


]]> http://leonlaw.com/askalawyer/2009/01/18/what-does-the-irs-consider-when-determining-whether-or-not-a-person-is-an-independent-contractor/feed/ 0 Is there a magic test to determine if a person is an employee or independent contractor? http://leonlaw.com/askalawyer/2009/01/18/is-there-a-magic-test-to-determine-if-a-person-is-an-employee-or-independent-contractor/ http://leonlaw.com/askalawyer/2009/01/18/is-there-a-magic-test-to-determine-if-a-person-is-an-employee-or-independent-contractor/#comments Mon, 19 Jan 2009 02:32:01 +0000 David Leon http://leonlaw.com/askalawyer/?p=88 No, there is no “bright line” test determine whether or not a person is an employee or an independent contractor. The IRS will look at the entire relationship between the parties.


]]> http://leonlaw.com/askalawyer/2009/01/18/is-there-a-magic-test-to-determine-if-a-person-is-an-employee-or-independent-contractor/feed/ 0 How can I tell if the person I hire is going to be classified as an independent contractor or an employee? Can I just say a person is an independent contractor in a contract? http://leonlaw.com/askalawyer/2009/01/18/how-can-i-tell-if-the-person-i-hire-is-going-to-be-classified-as-an-independent-contractor-or-an-employee-can-i-just-say-a-person-is-an-independent-contractor-in-a-contract/ http://leonlaw.com/askalawyer/2009/01/18/how-can-i-tell-if-the-person-i-hire-is-going-to-be-classified-as-an-independent-contractor-or-an-employee-can-i-just-say-a-person-is-an-independent-contractor-in-a-contract/#comments Mon, 19 Jan 2009 02:29:59 +0000 David Leon http://leonlaw.com/askalawyer/?p=87 No. From the perspective of the IRS, the IRS doesn’t care if you label a person an employee, independent contractor or anything else. The IRS will look at the entire relationship between the parties. If you incorrectly label someone an independent contractor when they are in fact an employee, you could face serious liability. The IRS has its own criteria for determining a person’s status as employee vs. independent contractor.


]]> http://leonlaw.com/askalawyer/2009/01/18/how-can-i-tell-if-the-person-i-hire-is-going-to-be-classified-as-an-independent-contractor-or-an-employee-can-i-just-say-a-person-is-an-independent-contractor-in-a-contract/feed/ 0 I want to hire someone for my small business. Can I hire them as an independent contractor and not have to deal with taxes? http://leonlaw.com/askalawyer/2009/01/18/i-want-to-hire-someone-for-my-small-business-can-i-hire-them-as-an-independent-contractor-and-not-have-to-deal-with-taxes/ http://leonlaw.com/askalawyer/2009/01/18/i-want-to-hire-someone-for-my-small-business-can-i-hire-them-as-an-independent-contractor-and-not-have-to-deal-with-taxes/#comments Mon, 19 Jan 2009 02:22:54 +0000 David Leon http://leonlaw.com/askalawyer/?p=86 This is a common question. Many small business owners want help, but don’t want the added hassle (or taxes) of hiring employees. Many business owners believe that they can just simply classify someone as an independent contractor by contract and be done with it. The problem is that the IRS may not agree with your assessment as to whether a person is an employee or independent contractor (even if your agreement specifically states such.) The IRS has its own criteria for determining a person’s status. The contract is only a factor, but it is not determinative. The IRS will look at the entire relationship. Further, if you incorrectly classify someone as an independent contractor, you can face some serious fines from the IRS.


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