Frequently Asked Questions for the Lunchtime Live! Webinars for Employers
Answered by the Legal Team of Commissioner Representing Employers Aaron Demerson
Disclaimer: The information below does not constitute either legal advice or an official pronouncement or position of the Texas Workforce Commission, but rather is only the personal opinion of the sender. The attorneys in the Commissioner's office do not give legal advice or make official rulings on agency matters, should not be cited as authorities in any matter before the agency or when dealing with agency staff about a case, and must minimize their involvement with administrative processes. They also do not give legal advice on any other matter, and any information they give should not be used as a basis for taking any employment-related action. Before taking any employment action that could adversely affect an employee, or before using any sample form or policy you may obtain from this office, you should consult a licensed private-sector employment law attorney of your choice.
Clicking on a link in the Table of Contents below will take you to the section where those questions are answered. Each section has a listing of the questions that are asked and answered – just click on a question to see the answer.
Table of Contents
Employment Law Topics:
This document contains answers and links to other resources for the most frequently-asked questions at our employer conferences and webinars. Consistent with the above disclaimer, it is not legal advice, is not an official statement of TWC positions, and is not a guarantee of any particular outcome in a claim or other kind of employment-related action. Following is a list of useful employment law-related websites featuring agency guidance:
Texas Guidebook for Employers: https://twc.texas.gov/news/efte/tocmain2.html
TWC Covid-19 Resources: https://twc.texas.gov/news/covid-19-resources-employers
Employer hotline: 800-832-9394 Labor / employee / claimant hotline: 800-832-2829
U.S. Department of Labor – Wage and Hour Division: https://www.dol.gov/agencies/whd
Governor’s Small Business Office: https://gov.texas.gov/business/page/small-business-programs
1. How many hours does an employee have to work
before taking lunch?
Since lunch breaks are optional under Texas law, the lunch break schedule would be determined by the company.
2. Currently, we pay overtime if our field
technicians work more than 40 hours a week, regardless if it's a short week.
We’ve implemented weekend on-call rotations. If the employee does not work 40
hours and it is his turn to be on call on the weekend, should we be paying
overtime on the weekend?
Overtime pay does not depend upon when the work occurs, unless extra pay for working at night, or on weekends, or on holidays is part of the wage agreement. Overtime pay is owed only on time actually worked in excess of 40 hours in a seven-day workweek.
3. We had a physician employee under a two-year
contract and as part of the terms for the contract, when it ended, he was
supposed to have purchased liability tail coverage and he did not. Would it
have been possible for us to have withheld the cost of tail coverage from his
final pay since it was required per the contract or would that have to be specifically
stated, that it would be withheld from final pay?
A deduction from pay like that would have to be specifically authorized by the employee to be valid under the Texas Payday Law. The contractual duty to purchase such coverage would help in a contract-based lawsuit in court, but for the money to be deducted from the employee’s pay, specific written authorization for a pay deduction for that purpose and in that amount would be necessary.
4. The interplay between DOL EFMLA and IRS rules
is confusing, regarding children under 18 v. IRS children under 14. Any help
you can give would be great. Thank you.
The DOL definition of “son or daughter” under the EFMLA is explained in the DOL FFCRA FAQ file at https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#40. For IRS purposes, see https://www.irs.gov/newsroom/covid-19-related-tax-credits-determining-the-amount-of-the-tax-credit-for-qualified-family-leave-wages-faqs, which explains that the tax credits associated with FFCRA payments are governed by DOL’s rules under the FFCRA.
5. What are the payroll tax cuts for COVID? Are those optional to implement?
The temporary extension of due dates for Social Security taxes is an very complex issue that an employer should discuss with the IRS or a tax professional, such as a CPA or a tax attorney. The official IRS guidance is at https://www.irs.gov/pub/irs-drop/n-20-65.pdf; the index of local IRS offices and their contact information is at https://apps.irs.gov/app/officeLocator/index.jsp.
6. How do I terminate a work-at-home employee
and recover company property?
Exactly how your company may terminate the employee of a work-at-home employee is up to the company, but would generally involve using a documentable way to give effective notice to the employee that his or her services are no longer needed after a specified date. Recovering company property would necessitate a mutual agreement, preferably worked out before the need arises, signed by the employee and by a company representative. See https://twc.texas.gov/news/efte/iii_work_separation_issues.html and https://twc.texas.gov/news/efte/iii_work_separation_issues.html in our online book for further information.
7. Can a minor (16 – 17-year-old) work on a
mobile vet unit or ambulance?
Yes, as long as the minor does not drive the vehicle or become exposed to radiation or hazardous substances. For a complete list of prohibited hazardous duty occupations, see https://twc.texas.gov/files/businesses/child-labor-law-poster-twc.pdf.
8. What are the laws regarding COBRA
cancellation due to non-payment during the pandemic?
The special extension of COBRA premium payment deadlines is explained in Section III(A)(3) of the official IRS, Treasury Department, and DOL Joint Notice document (“Extension of Certain Timeframes for Employee Benefit Plans, Participants, and Beneficiaries Affected by the COVID-19 Outbreak”) at https://www.federalregister.gov/documents/2020/05/04/2020-09399/extension-of-certain-timeframes-for-employee-benefit-plans-participants-and-beneficiaries-affected.
9. What are the wage rules for salary employees
- do you have to pay them their full weekly wage if they work at any time
during the week?
Generally, no, if an employee misses work due to personal business or illness, but specific reasons matter. For a complete list of legal deductions from the salaries of exempt salaried employees, see https://twc.texas.gov/news/efte/salary_test_for_exempt_employees.html.
10. Can we offer different levels of employee
benefits for different positions? For
example, pay 100% medical coverage for management staff and pay 50% medical
coverage for general staff?
While many types of benefits may be different for different categories of employees, special rules apply to health and retirement benefits. For health benefits, insurance laws and regulations allow insurance carriers to set standards for group plans regarding coverage, premiums, employer contributions, and so on. See https://twc.texas.gov/news/efte/salary_and_benefits.html and https://twc.texas.gov/news/efte/part_time_full_time.html.
11. Is it possible for an undocumented worker to
get a number from the IRS to file taxes?
How do I handle that as an employer if they have a tax number, but not a SSN?
If an undocumented worker cannot satisfy I-9 requirements, your company would not be able to legally employ them. That is a question under federal immigration and tax laws. The IRS will not issue a tax ID without at least some documentation. See https://www.irs.gov/individuals/international-taxpayers/individual-taxpayer-identification-number-itin-reminders-for-tax-professionals and https://www.irs.gov/individuals/international-taxpayers/taxpayer-identification-numbers-tin for official IRS guidance.
12. If an employee was given a warning letter of
non-compliance, can the employer deduct a percentage of the hourly rate if it
is stated in that letter for a second non-compliance?
The Texas Payday Law would require specific written authorization, signed by the employee, for a deduction from wages for a reason like that. In addition, such a deduction cannot take an employee’s pay below minimum wage.
13. How can I offer bonuses or other incentives
to non-exempt employees without making my overtime calculations a nightmare?
There is no way to avoid an overtime pay calculation with non-discretionary bonuses, i.e., bonuses that are promised or provided for in the wage agreement, or commissions for employees who are not exempt from overtime pay. Discretionary bonuses do not have to be considered when paying overtime. See https://twc.texas.gov/news/efte/k_bonuses_exclusions.html.
14. Do you know how the money we've spent on
payroll (not just payroll taxes) for COVID-19 quarantine hours (up to 80 hours)
and for the extended family coverage (up to 10 weeks additional at 2/3 pay)
will be paid back to the employers?
Tax credits for FFCRA sick leave pay and expanded FMLA leave are explained on the IRS website – see the commentary and links at https://www.irs.gov/coronavirus/new-employer-tax-credits.
15. If your business is too small to do direct
deposit for employees, is it "bad" to pay them via Paypal, Venmo, or Zelle, if they
do not want a paper check?
Paying wages with online payment services is not a bad thing. However, like any other wage payment method, the employer must do it in a way that is documentable and verifiable. The employer should also obtain the employee’s written authorization to pay wages that way. Since online payment services would involve an electronic transfer of wages, the employer should follow the rules outlined at https://twc.texas.gov/news/efte/electronic_fund_transfer_wages.html.
16. H-1B transfers / extensions and H-4 EAD
approval is taking longer than usual. Any specific reasons? Please advise.
Immigration law is purely a federal matter, and many immigration-related employment decisions are influenced by political and economic issues in the nation’s capital. You can find basic information on those visa topics at https://www.immi-usa.com/h1b-visa/h1b-visa-transfer/ (H-1B)and at https://www.stilt.com/blog/2020/05/h4-visa-extension-for-ead/ (H-4).
17. Is there assistance available to employers to
provide computer equipment for remote workers, or for employees that want to
work, but don't have the appropriate technology (computer, whether desktop with
double screens, mouse, CPU and keyboard, or even a laptop with headset)?
The U.S. Small Business Administration may be able to help with loans (https://www.sba.gov/funding-programs/loans/lender-match) and grants (https://www.sba.gov/funding-programs/grants/grants-programs-eligibility). In addition, try contacting a business services representative with the local Workforce Solutions office (the statewide directory is at https://twc.texas.gov/directory-workforce-solutions-offices-services.
18. What is the best way to incorporate a
Start with the Governor’s Small Business Handbook at https://gov.texas.gov/uploads/files/business/2019_Governors_Small_Business_Online_Handbook_.pdf, then check out https://gov.texas.gov/business/page/start-a-business for information on starting your business. For information on permits, see that office’s guide for business permits at https://gov.texas.gov/business/page/business-permits-office. For organizing and registering your business with the state, see the resources of the Secretary of State’s Office at https://www.sos.texas.gov/corp/formationfaqs.shtml. Your city may have an office where you can register locally – consult your city government’s website for further information.
19. Are employers required to pay a hazard pay to
employees, especially those in the medical field? If so, how is that calculated?
Hazard pay is not required under federal or Texas laws for the vast majority of Texas employees. However, some employers choose to give extra pay for hours spent performing hazardous duties. There is no specific formula for such optional pay. As with any kind of wage agreement, hazard pay should be clearly defined in a written wage agreement signed by each affected employee.
20. When a company merges with another company and starts a new company with new tax ID, does the up to $9,000 paid for each employee carry over? Or does the new company pay in for those again?
Unless your company is a licensed PEO covered by Section 91.044(a-1) of the Labor Code, there is no carry-over of unemployment taxes paid by a predecessor company to the successor entity. The new company would begin paying UI taxes on the first $9,000 of wages paid to the acquired employees, as soon as it acquires the predecessor entity.
21. How can we prepare for year-end reporting and
tax filing? Any suggestions or recommendations? Especially with COVID, there are so many
different credit adjustments and forms to look out for. Can we get a simplified easy-to-reference FAQ?
The best source of information for federal tax filings, extensions, and payments is on the IRS website at https://www.irs.gov/coronavirus/coronavirus-tax-relief-for-businesses-and-tax-exempt-entities. As always, consult your favorite CPA or tax attorney regarding any complex situations.
22. What is the best way to pay employees for online training, hourly or per training, ensuring they are actually doing the training for the amount of time that they say?
Since federal wage and hour law requires employers to track the exact hours each non-exempt employee works, an hourly training pay rate is probably the easiest way to go. Search for online training vendors with systems that help employers track and verify employees’ participation, and use written policies to ensure that employees know that their participation in the full training will be tracked and verified, and that anything less than full participation will be treated as a policy violation and dealt with accordingly.
23. Texas is an hour-worked / hour-paid state -
does it still apply during the pandemic?
Yes – see https://twc.texas.gov/news/efte/hours_worked_nx_ees.html for topics relating to federal regulations for hours worked.
24. How do employers handle federal postings for work at home employees?
See the “Required Posters” topic at https://twc.texas.gov/news/efte/required_posters.html, item 5.
25. What is the proper wording to make sure paid
time off (vacation) is used, but not abused? Meaning one person takes advantage of being
off to the detriment of the rest of the office staff.
Texas employers have the authority to establish rules regarding how much vacation time is available to employees, how requests for time off are made, whether the request to use such time is granted, and consequences for those who defy the employer’s instructions. For more information: https://twc.texas.gov/news/efte/vacation_sick_and_parental_leave_policies.html. Sample vacation leave policy language: https://twc.texas.gov/news/efte/vacation_and_sick_leave.html.
26. What is the rule regarding employees calling
in for their shift? Right now, we have a
2-hour call-in policy, but 2 hours is not enough time to fill a shift. What can an employer require of staff calling
in for their shift?
Texas employers may determine what the absenteeism/tardiness/call-in policy requirements are for their business. However, employers should ensure that their call-in policies are reasonable and reasonably enforced. For information on attendance policies, see https://twc.texas.gov/news/efte/attendance_and_leave_policies.html and https://twc.texas.gov/news/efte/attendance_policy.html.
If a Covid-19 vaccine is approved, can employers require his/her
employee get the vaccine?
Mandating employee vaccinations is not recommended, since it could violate an employee’s sincerely-held religious beliefs under Title VII, or could pose a danger for those with medical contraindications. For more information, see: https://www.eeoc.gov/laws/guidance/what-you-should-know-workplace-religious-accommodation#:~:text=Yes.,on%20operation%20of%20the%20business). Please also see: https://twc.texas.gov/files/businesses/texas-business-today-1st-quarter-2018-twc.pdf.
28. Most businesses have a heavy social media
presence. Must an employer obtain permission to use his/her employee's name in
While not technically required, it is a best practice for employers to obtain written permission from employees before using their name in an online post. The exception would be an online company directory or roster, such as a “Contact Us” page.
29. Can a staffer request not to do a job based
on religious belief?
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on religion. Employers are required to reasonably accommodate an employee for his or her religious beliefs, unless doing so would pose an undue hardship to the business: https://www.eeoc.gov/laws/guidance/what-you-should-know-workplace-religious-accommodation#:~:text=Yes.,on%20operation%20of%20the%20business).
30. Is the employer obligated to provide
recommendation letters to former employees? Is there a time period after they
leave the facility? How to decline without them retaliating on social media?
There is no law that requires employers to provide recommendation letters to former employees. Since there is no obligation to reply, there is also no time limit. Regarding how to decline to furnish a recommendation letter, there is no one-size-fits-all answer, as individuals may react differently to an employer’s refusal to provide a recommendation letter. As a best practice, many employers prefer to keep any responses short, succinct, and professional.
31. Is the COVID FMLA for staying home with
children to attend virtual school? Does
this pertain to employers with more than 500 employees?
The expanded FMLA under the FFCRA applies to virtual school situations where the physical school is closed, but classes are held online. See question 70 in the DOL’s FAQ document at https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#70. The FFCRA does not apply to employers with more than 500 or more employees.
32. We have an hourly employee who has been with us less than a year and recently had a back injury. She is a cleaner for our new construction projects, a physical job. She is unable to work and doesn't qualify for FMLA based on time on the job. At this point, we are unsure how long she will be out. She does great work, so assuming she gets released from a doctor in the future, we would want to keep her on. What can we do in the interim? Is there a medical leave we can offer where she can pay for her medical, etc., similar to FMLA?
Medical leave is a matter of company policy and reasonable accommodation under the ADA, if her injury is such that it counts as a disability; see https://www.eeoc.gov/disability-discrimination for EEOC guidance on the ADA. If your company has a group health plan that covers that employee, she would presumably qualify for COBRA benefit continuation under Texas and/or federal laws. See https://twc.texas.gov/news/efte/cobra.html in our book online for basic information on the COBRA laws.
33. If an employee is continuously absent because he provides transportation for his sick wife who has to have dialysis a couple times a week, takes her to doctor's visits, etc., would we be able to terminate him without breaking any laws? Due to COVID, we have a skeleton crew and it has become more difficult to be flexible with him. This is causing a burden on our business and other employees. How do you recommend that we proceed?
The ADA does not require reasonable accommodation for the illnesses of others, but the FMLA may provide the employee the right to take intermittent leave to tend to the serious health condition of his wife. See https://www.eeoc.gov/disability-discrimination and https://www.dol.gov/agencies/whd/fmla for official guidance from the EEOC and the DOL.
34. If an employer previously approved an ADA accommodation for an employee to work from home due to being in a high-risk category for contracting COVID-19, but we now want to make alternate arrangements so that the employee may return to working onsite (e.g., isolated office space available), what is the recommended process?
Ensure that the work environment meets all recommended CDC, OSHA, and local health authority standards and Covid-19 precautions, and document the work offer given to the employee. If the employee has filed an unemployment claim, a work refusal may be reported via https://apps.twc.state.tx.us/EBS_REF/ewrd/employeeWorkRefusalDoc for investigation by TWC.
35. Can an employee be on payroll (W-2 employee),
and also have a 1099 distributed for a completely different role?
This may be possible depending on the circumstances. The IRS has some information on this topic that you can find by visiting the following webpage: https://www.irs.gov/government-entities/federal-state-local-governments/when-would-i-provide-a-form-w-2-and-a-form-1099-to-the-same-person. Businesses can also contact the IRS directly for help and can find contact information at the following page: https://www.irs.gov/help/telephone-assistance. In addition, other agencies with their own interpretations of independent contractor guidelines should be consulted, such as the U.S. Department of Labor (see https://www.dol.gov/agencies/whd/fact-sheets/13-flsa-employment-relationship) and TWC (see https://twc.texas.gov/news/efte/ics_contract_labor.html). The latter link leads to an article with details about all of the major tests used for determining employment status under various laws.
36. Will there be additional support for Child Care
Centers? Will our business be penalized
with TWC for unemployment? I am asking
if my unemployment rate will go up?
The TWC has a webpage with resources for Child Care Programs which you can visit at the following link: https://twc.texas.gov/news/covid-19-resources-child-care. In addition, FAQs related to child care can be found at the following link: https://twc.texas.gov/news/frequently-asked-questions-about-unemployment-insurance-benefits-related-covid-19#childCare. Concerning unemployment claims, each claim is handled on a case-by-case basis. If a claim determination results in a chargeback to the employer, the employer’s unemployment tax rate could go up. For more information on employer unemployment benefit chargebacks, please visit: https://twc.texas.gov/businesses/employer-unemployment-benefit-chargebacks.
37. Will an employer’s rate be affected due to a regular
layoff that happened between January thru mid-March and then the Presidentially-Declared
Disaster came into effect – will my rate still be affected?
Each unemployment claim is handled on a case-by-case basis. If a claim determination results in a chargeback to the employer, the employer’s unemployment tax rate could go up. Information on unemployment benefits basics, including information on types of job separations, can be found at the following link: https://twc.texas.gov/businesses/unemployment-benefits-basics-employers.
38. Any projection on increased experience
ratings for 2021?
Information on unemployment insurance tax rates can be found at the following webpage: https://twc.texas.gov/businesses/unemployment-insurance-tax-rates. For specific questions about unemployment tax rates, employers can contact the TWC tax department directly using the tax contact information found at the following link: https://twc.texas.gov/unemployment-tax-contact-information.
39. Do we need to file SUTA tax if employees are
children of business owners and pay is not subject to FUTA tax?
For this question, please contact the TWC tax department directly using the tax contact information found at the following link: https://twc.texas.gov/unemployment-tax-contact-information.
40. Can a claimant receive unemployment benefits
when out on unpaid FMLA?
If an employee stops performing services for pay, the employee is generally considered unemployed and would be able to file an unemployment claim. Whether or not the employee receives benefits depends first on reason the employee stopped working. The employee must be out of work through no fault of employee. The employee must also meet the eligibility requirements, such as being medically able to work fulltime and being available to accept an offer of fulltime work. See https://twc.texas.gov/jobseekers/ongoing-eligibility-requirements-receiving-unemployment-benefits. Employees on FMLA are usually found ineligible to receive benefits because the events that qualify them for FMLA leave preclude them from being medically able and/or available for fulltime work.
41. Do self-employed qualify for unemployment?
If you are self-employed, a contract worker or previously worked in a position that did not report wages, you may qualify for unemployment and can apply. See https://twc.texas.gov/news/self-employed-texans-and-cares-act#selfemployedindependentContractorsDoIQualify.
42. How do unemployment claims affect the
employer during the pandemic?
In most cases, for non-Covid-related job separations, the employer will be financially liable (through either chargeback or reimbursement liability) if an employee is out of work through no fault of the employee. See https://twc.texas.gov/businesses/employer-unemployment-benefit-chargebacks. For job separations resulting from the Covid-19 natural disaster, taxed employers are eligible for chargeback protection. While reimbursing employers do not have the same protection, they do have some relief under the CARES Act.
43. Does everyone qualify for unemployment?
Not everyone who applies for unemployment benefits will qualify for unemployment benefits. Each case is considered individually on its own merits.
44. Why is it taking so long for employees to
receive UI or Shared Work payments?
Any delay is likely related to the unprecedented number of claims that were submitted as a result of the pandemic.
45. Can you work part-time and still receive UI?
Yes, a person can work part-time and receive unemployment benefits. If an employee has experienced a reduction in hours from fulltime to part-time, depending on the wages received on a weekly basis, the employee may be considered partially unemployment and be entitled to unemployment benefits. See https://twc.texas.gov/news/efte/ui_law_the_claim_and_appeal_process.html#partialui2.
Employees who participate in an approved Shared Work program can also work part-time and receive unemployment benefits. See https://twc.texas.gov/businesses/shared-work.
46. If a staff member gives two weeks’ notice of
resignation, can the employer ask that staff not to come to work prior to the
resignation date, and does the employer have to pay until that resignation
As long as the employee is an at-will employee, if an employee gives two weeks’ (or less) notice of resignation, the employer can accept the resignation before the end of the two-week notice period without obligation to pay the employee through the end of the two-week period. In other words, the employer is responsible to pay the employee through the last day worked, not through the last day of the two weeks’ notice. See https://twc.texas.gov/news/efte/types_of_work_separations.html#2-weeknotice.
47. Are you paying UI to those individuals who
quit and report “disaster” when filing a claim?
Depending on an employee’s reason for quitting, the employee may qualify for unemployment benefits. Each case is considered individually on its own merits.
48. Will the Employer Work Refusal Documentation
process continue past the disaster declaration?
If an employee is requesting unemployment benefits, the employee may be disqualified from the receipt of benefits if the employee refuses, without good cause, an offer of suitable work. This requirement was in effect before the pandemic and will be in effect after the pandemic. It is likely that TWC will continue to use the Employer Work Refusal Documentation Portal at https://apps.twc.state.tx.us/EBS_REF/ewrd/employeeWorkRefusalDoc after the pandemic as a means for employers to report individuals who refuse offers of work.
49. In light of the Public Health Emergency due to COVID-19 and impact of Hurricane Laura, were there any timeline deadline consideration given to employers for submitting unemployment claim responses? If so, were TWC employees informed of this change? We were overwhelmed by the number of unemployment claims that were submitted to our agency. The circumstances in which we have had to function in the healthcare industry has been mind-boggling, to say the least. We have received responses indicating that our rights to claims has been relinquished due to a one-day late response. After all we in the healthcare industry are dealing with, you would think some consideration would be given to the employers who are struggling through events to maintain these frontline "heroes".
As a general matter, TWC does not have discretion or authority to waive or extend the claim response or appeal deadlines that are in the law. Those deadlines were imposed by the Texas Legislature, based upon the federal laws enacted by the U.S. Congress, and so any changes would have to be enacted by elected officials. That having been said, TWC, based on court decisions and federal regulations, has recognized some exceptions to the deadlines in cases where independent and credible evidence shows that a late response or appeal was due to factors outside of the claimant’s or employer’s control, such as misdelivery or non-delivery of mail, TWC error in addressing correspondence, use of wrong information in describing a party to a claim, unavailability of phone, fax, or online systems due to system failure or overload, or similar problems. Each such case will be investigated and considered on the basis of its individual facts, and the appealing party should be as specific as possible in describing the problem, both when appealing and when testifying during an appeal hearing. See, in general, Commission Rule 815.32 at https://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=40&pt=20&ch=815&rl=32.
Contact Commissioner Demerson’s office:
E-mail: firstname.lastname@example.org Phone: 800-832-9394 / 512-463-2826
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