If the calls and emails coming into my office are any indication then there is a growing problem with unpaid wages, minimum wage violations, minimum wage tip violations and unpaid overtime pay here in Texas. I am getting a lot of contacts from people with unpaid wages. The Fair Labor Standards Act and the Texas Payday Law regulate payment of wage in Texas.
These laws have duplicate requirements; but the Texas Payday Law adds some additional rules that help ensure employees are paid what they are due. These additional rules include provisions setting out how and when employees must receive paychecks. To enforce these provisions the Texas Payday Law offers a process in which employees file a claim through the TWC. The TWC will attempt to resolve the issue through its administrative process.
Unpaid wages in Dallas and Fort Worth, Texas and employment attorneys
Many attorneys refer employees with small wage claims to the Texas Workforce Commission to follow the administrative process. Although the process is beneficial for some employees because the process is quicker than litigation and carries no financial cost to employees, it is not always the right solution for all employees. Under Texas law an employee can also file suit for unpaid wages as a breach of contract claim. That allows the employee to recover attorney’s fees. That can add a sum to an unpaid wage claim and help obtain legal services.
The key downsides to taking this approach is that litigation is often much slower. (With minimum wage or overtime violations, the federal Department of Labor may also want to conduct an audit.)
Choice of remedies for unpaid wages
When making the decision to take the TWC administrative process or filing a lawsuit it is important to note that the employee must pick a direction and commit to it. Under the Texas Payday Law, if an employee files a wage claim then the employee cannot pursue breach of contract. Texas courts generally agree on this point and the Austin appellate court recently affirmed that position in Bloch v. SAVR Communications, Inc. where an employee pursued an administrative wage claim, lost and then sought judicial review of the administrative process and attempted to add the breach of contract claim.
The appellate court rejected the contract claim under res judicata. That means the court denied giving the employee a second attempt to litigate the same facts.
There is more to consider in selecting one process over the other than the speed of resolution. Naturally, each claim is different and facts about the employee’s situation and the employer’s operations will affect what process is best for a particular individual. In addition to the unpaid wage claim, there may be other claims out there, such as unpaid overtime claims, discrimination claims and so forth. Having an employment lawyer review your situation and help determine a strategy to address your situation is the best way to make sure all of your potential claims are protected and prosecuted.