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Employment Law/Fluctuations in hourly schedule


State: Texas
We have employees (drivers) scheduled on a 60 hour weeks with hourly pay and overtime after 40. On slow days, we ask them to leave early for the day, while guaranteeing no less than 40 hours work per week. Will this be sufficient reason for the employee to get unemployment benefits based on a decrease in income? especially if the job is seasonal, meaning the employee will most likely work all 60 hours during summer weeks and close to 40 hours during the fall
In other words, is asking the employee to clock out earlier than his "expected scheduled leaving time" considered illegal, does it break any laws?


First, your question about reduced hours: under Texas law, unemployment benefits can be paid to someone who is "partially unemployed."  A partially unemployed person is someone whose pay, due to a reduction in work time, is below 125% of the weekly benefit amount to which he or she would be entitled if totally unemployed.  All regular and overtime compensation is included in the base wages used to calculate the benefit, so for any sizeable reduction in weekly hours, I think it would be advisable for your employees who suffer those reductions to file with the Texas Workforce Commission for possible benefits.  

Now your other question: No, you are not breaking any laws by asking drivers to clock out early when there is not enough work to do.  The only exception would be if there is a union contract or individual employment contract in place guaranteeing the drivers a set level of hours of pay, even if not all of those hours are actually worked.  I would need to know more about what the drivers have been told, verbally and in writing, about their "expected" hours to render any opinion as to whether that is enough to support an individual contract claim, or about what any applicable union contract might say about guaranteed work hours and pay for time not actually worked.

I hope you find this helpful.

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Frank C. Magill


I can answer questions about any U.S. labor or employment law question. I cannot answer questions about non-US law. I am not a specialist in employee benefit law (ERISA and HIPAA) or Workers' Compensation law, but will do my best to point questioners toward good resources availabe online. Expertise includes, without limitation, EEO/Affirmative Action/Employment discrimination (Title VII, Age Discrimination in Employment Act, Americans With Disabilities Act, GINA, Fair Credit Reporting Act as applied to employment); Fair Labor Standards Act; Texas labor code; Family Medical Leave Act; employee compensation; discipline and dismissal; force reductions, severance pay programs and administration; collective bargaining, union representation, grievances and arbitration, National Labor Relations Act and National Labor Relations Board; employee handbooks; staffing; dispute resolution outside of traditional labor agreements; employee communications; employment policies and compliance programs; codes of ethics; employment or labor litigation.


30+ years experience as corporate counsel for a Fortune 100 telecom company, specializing in labor and employment law issues. In addition to providing day-to-day advice to my company's internal HR leadership and staff, I've represented the company in numerous labor arbitration cases and at the bargaining table.

Texas, Illinois and Missouri state bars

J.D. 1979, Harvard Law School. B.A., Summa Cum Laude, 1976, Illinois Wesleyan University.

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