The difference between all of these entities is that depending on what type of business you are opening, and what your goals are, every entity has different tax consequences, as well as different outcomes with regards to liability.  If you are interested in forming a company, and are unsure which type of entity you should form, you should contact a Smith & Garg Business Attorney to find out your options.

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If you are an employee and are thinking about filing a claim for unemployment insurance, or, taken from a different perspective, if you are an employer and want to know whether you are obligated to pay unemployment insurance, the person filing the claim must meet the following basic criteria:

1) First of all, you need to establish that you have earned enough wages, and that you meet the “base period” requirements laid out by the Texas Workforce Commission.  The TWC “base period” calculation is based on wages earned or time worked during the most recent 12 month period.

2) Secondly, you must show that you are now unemployed due to no fault of your own.  Of course, if you are making such a claim, you should be prepared to show evidence to the Texas Work Commission that you were willing to work, and that you tried to correct whatever the problem was before you quit, or were fired.  For example, if you were laid off, your hours at work were reduced, you were fired for some other reason not related to poor performance, neglect, failing to perform acceptably, or you quit for a valid health-related reason, then you most likely will qualify for UI.

3) Third, you will have to show that you are actively pursuing full-time work, that you are available for such full-time work, that you are applying for acceptable work, and you must keep a record of job interviews/searches for each week that you receive UI benefits.

From the employer perspective, if an ex employee files for UI, and the employer would like to contest the claim filed, he/she does have that option.  Especially, if the employee was genuinely fired due to poor performance, neglect or mismanagement, or lack of performance.  Just as an aside, I think it is absolutely wrong, immoral, etc. to claim UI when you are physically able to work, you are qualified to work, but just don’t want to work because you are lazy…that is not the reason that Unemployment Insurance was created.  You all know who that employee is in your company or office …you know, the one who always comes in late, doesn’t show up to work half the time finding new and interesting excuses each week to avoid coming in, the one who is lippy with their respective supervisors, the one who never shows up for any company parties, events, functions, and the one who doesn’t really seem to care whether he/she gets fired or not.  There are so many hard working people in America, many of whom would give anything to get a job to provide for themselves and their families, but can’t get a job, and are barely making it…that is who UI was created for, and unfortunately, this benefit is being abused by others.

If you are an employer, and you are contesting a claim filed by an ex employee, the employer should be prepared with evidence to establish that the employee was genuinely let go due to poor performance, lack of performance, neglect, etc.  If you work in the state of Texas, or you are an employer in the state of Texas, and are unsure about your rights or obligations with regards to Employment Law, please contact our office, so that a qualified attorney can assist you.

In the U.S. the laws governing an adoption case are the ones in which the child resides and it is considered a private legal matter. Whether you are adopting a child internationally, across state lines or right here in Texas, it is imperative that you seek sound legal advice from a family law attorney at Smith & Garg.

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I am sure you have heard it time and time again, but Texas is an “at-will employment state” and with regards to employees, this is a very tough standard. So what in god’s name does that mean?  Basically, at-will employment means that absent a contract or civil rights exception, the employer may fire the employee at any time, with or without cause. For instance, an employer can come into the office one morning and fire an employee because he or she does not like the color of the employee’s shirt. Additionally, the employer does not have to state why he/she is firing the employee.  This is completely legal in the State of Texas. For this reason, despite popular misconception, there is generally no claim or cause of action for wrongful termination or wrongful discharge. I have had several individuals call me and tell me that they just got fired, that they were not given any reasons for why, and that they felt that it was racially motivated.  When I proceed to ask questions, there is typically not any actual proof or solid evidence of racial discrimination, and unfortunately you can’t sue an employer on the grounds of a hunch or a feeling.

There are, however, a few exceptions to the general rule and these exceptions are very important. An employer’s right to terminate an at-will employee can be limited by contract, by public policy concerns, by federal and state civil right statutes, and by some tort theories.  Let us explore these a little further.

If an employee and an employer signed an employment contract, each party to the contract has the duty and obligation to adhere to the terms and conditions of that contract. Wrongful termination can occur if the employer terminates the employee in violation of the contract - oral or written. It is also important to note that an employee can also be sued for violation of an employment contract if he/she is in breach.

Employees of a publicly traded company who report fraudulent activity are protected from retaliation and cannot be terminated for reporting that activity.  This is called “Whistle-Blower Protection”.

An employer may not terminate an employee for refusing or failing to commit illegal or illicit acts. If an employee is terminated for the sole reason that he or she failed to commit a crime, he or she may have a cause of action for filing a wrongful termination lawsuit.

Certain civil right statutes prevent employers from terminating or taking adverse action against an employee for the following reasons:

• Discrimination – An employer may not discriminate on the basis of an employee’s race, color, national origin, religion or sex.
• Age – An employer may not terminate an employee on the basis of age if the employer has more than twenty employees.
• Disability — An employer cannot terminate employees who are otherwise qualified for a given job position based on disability.
• Health Related — An employer can be liable to an employee if he or she fails to allow unpaid leave for the birth or adoption of a child, or to care for a child spouse or parent suffering serious health condition.

Sometimes, issues can arise during the period of employment or after employment has terminated which can impose liability on a company or an employee. Defamation claims can arise in a variety of employment contexts including reviews, corporate communications, investigations of an employee’s conduct, and post-employment references. In Texas, to establish a claim for defamation an employee must show the following:
     (i) an employer made a false statement about him or her, which
     (ii) was published to a third party, and
     (iii) caused the plaintiff harm and the statement was made with malice.

Some common statements complained of involve dishonesty, fraud, sexual harassment, and illegal drug use.

The Family Medical Leave Act prohibits retaliation by the employer for an employee taking or requesting medical leave.

If an employee files for bankruptcy under the U.S. Bankruptcy Laws and is terminated by an employer because of the filing for bankruptcy, an action can be brought against an employer for wrongful termination.

The Fair Labor Standards Act (“FLSA”) was designed to protect workers from excessive hours and substandard wages. The FLSA entitles an employee to receive not less than one and one-half times regular rate for every hour of compensable time worked in excess of forty hours in any given workweek. Some employees, however, are exempt, such as executives, as well as certain service industries, such as domestic services.

If you are an employer or employee, violation of some of the standards and laws referenced above can have dire consequences both personally and professionally. It is important to consult with an attorney immediately if you believe that you have been wrongfully terminated or if your company has been sued or is about to be sued for wrongful termination. The attorneys at Smith & Garg, LLC are experienced attorneys who would be honored to represent you or your company’s interests in the event you need legal services.

So, I am sure you are wondering what happens next, if you discover that you do in fact have a claim.  With regards to remedies , you may sue the debt collector within one year from the date of the violation, in state or federal court. If you are successful, you could potentially recover monetary damages, as well as an additional amount up to $1,000.00. Also, you may be able to recover attorney’s fees and court costs involved in pursuing such a claim. Class action suits are also an alternative, where a group of consumer-debtors file suit against a common debt collector, they can recover monetary damages up to $500,000, or one percent of the debt collectors’ net worth; whichever is the lesser of the two options. If you feel that your consumer rights have been violated by a debt collector, call a qualified attorney at Smith & Garg today for a consultation.