Top Ten Tips Disclaimer
The Texas Payday Law provides a specific process by which employees or ex-employees who feel they have not been properly paid may file claims for the wages they believe should have been paid to them. It is a claim-driven system - nothing happens until and unless a claim is filed. Unlike the U.S. Department of Labor, the Texas Workforce Commission does not conduct audits of employers' payrolls or payroll practices. TWC simply accepts wage claims, investigates them, and makes rulings thereon. Following is a summary of the steps in the wage claim process.
The claimant files a wage claim using an official form for that purpose (accessible online at www.twc.state.tx.us/ui/lablaw/ll1.pdf (English) and www.twc.state.tx.us/ui/lablaw/ll1s.pdf (Spanish)). The form asks for very specific information relating to the identities and contact information for the claimant and the employer, the wage agreement, the pay rate, the specific way in which the claimant believes he or she was not properly paid, and other information designed to give TWC's Labor Law Department enough information to. The form must be signed and notarized by the claimant prior to its submission to the agency. The claim may be filed in person at any local TWC office or Workforce Solutions center, by mail, or by fax.
TWC's Labor Law Department opens a claim file and begins the investigation by mailing a notice of the wage claim to the employer, advising the employer that it should respond within fourteen (14) calendar days (the claim notice and response form is available online at http://www.twc.state.tx.us/ui/lablaw/erwc.pdf). The employer's initial response is vitally important, since it is an excellent chance to set the record straight and to get the employer's side of the situation in front of the investigator in time to make a difference. The response should include copies of whatever wage agreements and fringe benefit policies that might exist, depending upon the specific components of the compensation the claimant is claiming.
The claim investigator conducts initial research into the legal issues, depending upon the nature of the claim made and the information supplied in the employer's response.
The investigator attempts to contact each party by phone in order to pin the parties down on details, resolve conflicts, and evaluate the relative credibility of each side. If the investigator requests additional documentation, the employer should not hesitate to supply copies. In almost every case, that is a good sign, i.e., there is a fairly good chance that the investigator thinks that the documentation would indicate that all or part of the wage claim should be denied or limited in some way that would be favorable for the employer.
Finally, the investigator issues a written decision called a Preliminary Wage Determination Order. The determination notes that it will become the final decision of the Commission unless the losing party appeals in writing within 21 calendar days of the date the determination was mailed. The deadline for appealing is very strict - the only exceptions are for mistakes made by the U.S. Postal Service or TWC in addressing or delivering the determination or in handling the appeal, or for misinformation from a Commission representative that misleads a party as to their appeal rights.
If the employer does not agree with the Preliminary Wage Determination Order, it has the right to file an appeal within 21 calendar days of the date that the decision is mailed by TWC. A late appeal will result in the issuance of an Order of Dismissal, and a hearing on the late appeal issue will not be granted unless the employer files a timely appeal and alleges a potentially valid reason for the late appeal, as described in the preceding paragraph. If the appeal is timely, the employer will be able to have all of its evidence and testimony considered by a hearing officer, who will issue an official ruling on the appeal. Obtaining an appeal hearing and participating in the hearing generally involve the following steps:
The employer files its appeal in writing. If mailed, obtain proof of mailing; if faxed, use a fax machine that will generate a fax confirmation sheet showing an accurate date and time for the fax.
The appeal letter does not have to be complex - it can be as simple as "We disagree with the determination dated ________ and would like to have an appeal hearing on the matter." Any details as to the merits of the wage claim should correspond to whatever details the employer supplied in the initial response to the wage claim. Inconsistencies can be very damaging.
The Special Hearings Unit will mail a packet containing the notice of hearing and instructions for participation to each party. Check the packet carefully to see what is included. Documents that are important to the case, but which are not included in the packet, will need to be sent in copy form to both the claimant and to the hearing officer in order to be admitted as exhibits. Each party is responsible for offering all relevant information at the hearing; failure to properly submit documentation and other evidence at the hearing could mean that the party will lose the ability to use such evidence to present its case, both at the hearing and later, unless a compelling reason exists for the evidence not being offered earlier.
Prepare an outline of the points to be discussed at the hearing. Include any items that are relevant to the wage claim. Use the outline as a checklist to ensure that no important points are left undiscussed.
Call in for the hearing during the thirty-minute period preceding the stated start time, i.e., if the start time for the hearing is shown as 1:30 p.m., call in between 1:00 p.m. and 1:30 p.m. (it is best to during the first twenty minutes of that thirty-minute period, just to allow for differences in clocks). Be sure to use the toll-free number shown on the hearing notice - it is always in bold and bordered in black. The hearing officer will call both parties back and connect everyone via conference call.
If you have witnesses, tell the hearing officer about them and that they will be expecting a call when the hearing officer is ready to take their testimony. Give the hearing officer their names and phone numbers when asked.
When the time comes to take testimony from the employer, the hearing officer will ask the first few questions, then allow the employer to make additional points. Do not bring up anything that is not connected to the issues listed on the hearing notice.
Hearing officers are usually pressed for time and appreciate brevity. They also appreciate witnesses who seem organized and in command of their testimony and exhibits. On the other hand, they do not like it if witnesses are combative, argumentative, or disorganized. Even though it may be hard to resist the temptation to get on a soapbox about the claimant and what a poor performer or dishonest employee they were, it is always much better to concentrate on giving a concise, well-organized, calm description of how the claimant was properly paid according to the wage agreement and any applicable policies. Explain your points, and then turn the hearing back over to the hearing officer.
As you present witnesses, the hearing officer may ask them a few questions as a start, and then turn them over to you. The claimant will have a chance to cross-examine each witness, just as you will have a chance to cross-examine the claimant and any witnesses who testify on the claimant's behalf. Be as civil and non-confrontational as possible - your attitude and demeanor can influence a credibility determination in a close case.
If any particular documents are important to your case, mention them specifically to the hearing officer at the appropriate point in your testimony and state that you wish to enter them as exhibits. The hearing officer will ensure that the claimant has a copy of the document before entering it as an exhibit. Once the exhibit is entered, explain its significance and focus on any important details it contains.
If the claimant says anything you disagree with during his or her testimony, make a note of it and address the issue when it is your turn to testify.
At the conclusion of the hearing, the hearing officer will ask each party if they have additional testimony or evidence they wish to give. Assuming there is none, the hearing officer will briefly explain that the parties can expect a written decision in the mail, thank the parties for their participation, and conclude the hearing.
The hearing officer will prepare a written decision, sign it, and mail it to both parties and any representatives they may have.
A party who misses a hearing and loses the case may request a reopening of the hearing, but the first issue at the new hearing will be whether the party had good cause to miss the previous hearing. To have a better chance of doing that in the event that your company cannot call in for a hearing at the designated time, you should call the hearing officer beforehand to give notice of that issue. Ask for a postponement, even if you feel there is little chance one will be granted, and document the call. In general, good cause to miss a hearing is something that was outside your power to control.
A claimant or employer losing the decision issued by the hearing officer may file a further appeal to the three-member Commission in Austin. If such an appeal is filed, the Commission will review all of the evidence in the case and vote on whether to affirm, reverse, or modify the hearing officer's decision, or to order an additional hearing.
Following the Commission appeal, the losing party may either file a motion for rehearing within fourteen (14) calendar days of the mailing date of the decision, or else file an appeal in a court within thirty (30) calendar days of the date the decision was mailed. In order to be granted, a motion for rehearing must offer specific new evidence, give a compelling reason why the new evidence was previously unavailable, and explain how the new evidence is so important that it would change the outcome of the case. It is very difficult to get a rehearing granted, which is why it is so important to put every possible effort into winning the first appeal decision.
Court appeals are also difficult to win. There is no jury for such a trial. The judge conducts the trial (trial de novo) and renders the decision. In so doing, the judge applies the substantial evidence standard of review, which means that if the court finds that there is substantial evidence to support TWC's decision, the agency decision will be affirmed. In practical terms, that means that even if the judge would have personally felt the decision should have gone the other way, the agency decision will be upheld if there is enough evidence in favor of it that a reasonable fact-finder could have ruled that way. On the other hand, if the judge finds that there was no substantial evidence in favor of the agency ruling, i.e., that no reasonable fact-finder could have ruled the way the agency did, the court can render a decision the other way. A case that contains a good discussion of the substantial evidence review standard and the applicable case law is New Boston General Hospital v. TWC and Becky Borgeson, 47 S.W.3d 34 (Tex.App.-Texarkana 2001).
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