Juan B Hernandez

Juan B Hernandez

  • Bankruptcy, Employment Law
  • Mississippi, Texas
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Practice Areas
  • Bankruptcy
  • Employment Law
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  • Free Consultation
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Jurisdictions Admitted to Practice
Mississippi
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Texas
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Education
Mississippi College School of Law
J.D. (2014) | Law
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Professional Associations
State Bar of Texas # 24094717
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Current
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The Mississippi Bar # 104787
Member
Current
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Legal Answers
11 Questions Answered

Q. I work at a 7 eleven in Texas and haven't had a day of in a month is this legal ?
A: Neither Texas labor law nor the federal Fair Labor Standards Act restricts how many days in a row an adult employee can work or be requested to work. This is referred to as the “unlimited hours rule.” This means an employee could theoretically work for weeks without a day off. Under federal law, employers can require their employees age 16 and older to work unlimited hours per week, as long as they pay them at least minimum wage and overtime as necessary. In the absence of federal requirements, states can implement hour limits and prohibit employers from requiring their employees to work excessive hours. In Texas, the Texas Labor Code contains maximum hour limitations for certain types of employees. The Texas Labor Code contains a mandatory day of rest requirement for retail employees. Retail employees can work up to six consecutive workdays without a day of rest. However, after retail employees have worked six days consecutively, employers must give them a consecutive 24-hour rest period. The day of rest law only applies to full-time retail employees.
Q. Would it be legal for the place I regularly work to file me as an independant contractor to avoid taxes?
A: You have a two-part question: (1) Neither federal law or Texas state law require employers to provide employees with a lunch break. Employers choose whether to provide employees with a lunch break during a work shift. The only exception involves mothers who breastfeed. They must receive a lunch break of at least 30 minutes. Yet, employers may not discriminate in permitting rest periods (“breaks” or “lunches”). This means an employer may not offer some employees rest periods based on sex, age, gender, national origin, religion, disability, or any other protected class. Yet, an employer could offer rest periods based upon a uniform policy, business needs, or productivity. While lunch breaks are not mandatory, the Fair Labor Standards Act stipulates some general rules regarding lunch breaks and Texas state law mirrors these laws. Essentially, a break of 30 minutes or more constitutes a lunch break. Both federal and state law do not require employers to compensate employees for this time when employees are not engaged in work while eating. If an employer provides a break shorter than 30 minutes, it must be paid. (2) Just because the Company labels you as an "independent contractor" does not necessarily mean you are one. Here is a link that discusses how the Texas Workforce Commission determines whether an individual is an employee vs. independent contractor. http://www.twc.state.tx.us/businesses/classifying-employees-independent-contractors The link also provides ways to submit a claim if you believe you have been misclassified.
Q. My last employer change my status from salary to hourly on my last check to avoid paying me my full check is this legal?
A: Neither Texas or Federal law prohibit an employer from retroactively modifying an employee's wages. However, the Texas Workforce Commission (“TWC”) apply common law principals to protect employees from retroactive wage reductions. When an employer retroactively reduces wages without notice to the employee, that employee can file a claim to recover the lost wages with the TWC. Here is a link to the TWC’s web page on wage claims. http://www.twc.state.tx.us/jobseekers/how-submit-wage-claim-under-texas-payday-law Additionally, if you feel like you were misclassified as a salary employee from the start and work overtime hours during that time frame, you should contact an employment attorney to discuss further.
Q. I was just wondering if it was legal to make an employee work 15 days straight without a day off
A: Neither Texas labor law nor the federal Fair Labor Standards Act restricts how many days in a row an adult employee can work or be requested to work. This is referred to as the “unlimited hours rule.” This means an employee could theoretically work for weeks without a day off. Under federal law, employers can require their employees age 16 and older to work unlimited hours per week, as long as they pay them at least minimum wage and overtime as necessary. In the absence of federal requirements, states can implement hour limits and prohibit employers from requiring their employees to work excessive hours. In Texas, the Texas Labor Code contains maximum hour limitations for certain types of employees. The Texas Labor Code contains a mandatory day of rest requirement for retail employees. Retail employees can work up to six consecutive workdays without a day of rest. However, after retail employees have worked six days consecutively, employers must give them a consecutive 24-hour rest period. The day of rest law only applies to full-time retail employees. There are a few situations in which a Texas employer is obligated to give an employee time off. For example, Texas employees must be allowed up to two hours of paid time off to vote in an election and they must be given time off for jury duty. Also, the FMLA requires that Texas employers with more than 50 employees must allow employees up to 12 weeks unpaid time off for family or illness related issues
Q. I have pneumonia and was told by my doctor to take time off from my job. I called my employer and was terminated. What?
A: Texas is an employment at will state. Typically, unless an employee has an employment contract, or is employed under a collective bargaining agreement through a union, the employer can modify or terminate the employment at any time with or without cause for any non-discriminatory reason. However, an employer generally cannot alter or terminate employment for prohibited discriminatory reasons (such as a disability), or in retaliation for certain protected actions (such as whistle-blowing). The Americans with Disability Act (ADA) protects people with disabilities from discrimination. However, under the ADA, temporary conditions that are minor don't qualify as disabilities. For example, colds, the flu, and sprains generally won't qualify as disabilities, assuming they don't have serious, long-term consequences. Depending on the length of time off and the severity of the temporary illness, pneumonia may be considered a disability. If you wish to bring suit against your former employer, note you must file a charge of discrimination with the EEOC within 180 days after the adverse employment action took place (in this case termination). You should contact an employment attorney to discuss your situation.
Q. Can a company payroll deduct for a damaged tool workout your prior knowledge? Is there a timeframe for workplace injuri
A: I agree with the previous comment regarding your work-related injury. Also note, if the company does subscribe to workers' compensation and you file a claim, the Company cannot retaliate against you for filing such claim. As for the wage deduction, the employer is allowed to deduct these wages from your paycheck only if they obtain written authorization from you before they do so. Some employers require employees to sign a policy that allows them to do so as part of the initial hire. Below is a link that might help you with this situation: https://www.dol.gov/whd/opinion/FLSA/2006/2006_03_10_07_FLSA.htm.
Q. I am a salaried employee I work more then 40 hrs. I don't get paid overtime, but I get docked for 2hrs when out of pto.
A: The short answer is yes, as long as you are still receiving the guarantee salary. The U.S. Department of Labor Wage and Hour Division issued an opinion that might be related to your situation. In the opinion, it states: "To respond to your specific concern about whether or not an exempt employee’s accrued PTO leave bank may be reduced for partial day absences, the answer is yes. Where an employer has a benefits plan (e.g., vacation time, sick leave), it is permissible to substitute or reduce the accrued leave in the plan for the time an employee is absent from work, whether the absence is a partial day or a full day, without affecting the salary basis of payment, if the employee nevertheless receives in payment his or her guaranteed salary. Payment of the employee’s guaranteed salary must be made, even if an employee has no accrued benefits in the leave plan and the account has a negative balance, where the employee’s absence is for less than a full day." You can view the full opinion at https://www.dol.gov/whd/opinion/FLSA/2005/2005_01_07_7_FLSA_PaidTimeOff.htm In regards to whether you are properly classified as a salary, exempt employee, more information is needed to make this determination, you should consult with an employment attorney to discuss further.
Q. Employer is writing me up for false reasons after w/c claim. I feel like they are trying to fire me. What can I do?
A: Unfortunately, Texas is an "at-will" state meaning that your employer can fire you for any reason. However, should your employer terminate your employment, you may have a claim for workers' compensation retaliation under Chapter 451 of the Texas Labor Code. Texas Labor Code § 451.001 provides: A person may not discharge or in any other manner discriminate against an employee because the employee has: (1) filed a workers’ compensation claim in good faith; (2) hired a lawyer to represent the employee in a claim; (3) instituted or caused to be instituted in good faith a claim for workers’ compensation benefits; or (4) testified or is about to testify in a proceeding for workers’ compensation benefits.
Q. What can I do to employer for not paying wages?
A: If you have received your final paycheck from your employer minus the wages still due, you may need to file a claim for unpaid wages with the Texas Workforce Commission. Here is the link in order to submit a claim: http://www.twc.state.tx.us/jobseekers/how-submit-wage-claim-under-texas-payday-law
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