Employment Law/employer failed to pay last check.
I'm truck driver, last trip was to San Juan,Tx., from Las Vegas,nv. total 3400 miles, including extra stops, $1,343.00, due on 02/23/2013. Far passed the 30 day max. penalty, allowed to charge. Have been retalated against with threats of being sued, reported to DOJ, FMCSA, hireright dac report,just received text, calling me a embezzeler?,extortionist? I had informed the DOT, that this guy had equipment that was unsafe for highways, should be under the protection of STAA of 1982, for retaliation? can I file a claim for wages in Tx., for the money owed?
Joseph: I would need to know some more facts to be able to answer your question correctly.
1. Are you an employee or an independent contractor? That's not always the easiest question in the world to answer but it's critical, since the Texas Workforce Commission (TWC) and similar agencies in other states generally only have jurisdiction over employee wages. If you are an independent contractor, your remedy would be a breach of contract claim in state court.
2. If you are an employee, is your employer based in Texas? If so, then you can file a wage claim with the TWC.
3. Are you a resident of Texas? That also would be sufficient in most cases to give the TWC jurisdiction over the employer. See the excerpt below from Rule 821.3 of the Texas Administrative Code, relating to the TWC's jurisdiction, and below that, an excerpt from the Labor Code defining when "service" is considered to be under the jurisdiction of the TWC for unemployment tax purposes:
(a) The Commission shall exercise jurisdiction over wage claims in which:
(1) the work is performed exclusively in Texas;
(2) the work is performed in part in Texas and in part in other states within the United States and where the wages would be reportable to Texas for Unemployment Insurance purposes pursuant to Texas Labor Code §201.043 [NOTE: See below]; or
(3) the work is performed by an individual who is a Texas resident at the time the work is performed and the work is performed outside Texas for a Texas employer or a non-resident employer over whom Texas exercises jurisdiction pursuant to subsection (b) of this section.
(b) The Commission shall exercise jurisdiction over a non-resident employer pursuant to the Texas Civil Practice & Remedies Code, Chapter 17, Subchapter C, also known as the "Texas Long-Arm Statute," when all three of the following are met:
(1) the employer purposely does some act or consummates some transaction in Texas;
(2) the wage claim arises from the employer's act or the employer's contact with Texas is continuing and systematic; and
(3) exercising jurisdiction is consistent with:
(A) fair play and justice as determined by the quality, nature and extent of the employer's activities in Texas including the extent to which the employer avails itself of the benefits and protections of Texas law; and
(B) the relative convenience of the parties.
(c) The Commission shall not exercise jurisdiction over wage claims to the extent the wages are for work performed outside the United States.
Labor Code Section 201.043 provides in part:
Location of Service
(a) In this subtitle, "employment" includes service performed in this state or in and outside this state if:
(1) the service is localized in this state; or
(2) the service is not localized in any state and some of the service is performed in this state and:
(A) the base of operations is in this state, or there is no base of operations, but the service is directed or controlled from this state; or
(B) the base of operations or place from which service is directed or controlled is not in a state in which a part of the service is performed, and the residence of the person who performs the service is in this state.
(b) In this subtitle, "employment" includes service performed anywhere in the United States, including service performed entirely outside this state, if:
(1) the service is not localized in a state;
(2) the service is performed by an individual who is one of a class of employees who are required to travel outside this state in performance of their duties; and
(3) the individual's base of operations is in this state or, if there is no base of operations, the individual's service is directed or controlled from this state.
(c) In this subtitle, "employment" includes service performed entirely outside this state that is not included as employment under Subsection (b) or Section 201.045 and for which contributions are not required and paid under an unemployment compensation law of another state if:
(1) the individual performing the service is a resident of this state; and
(2) the commission approves the election of the employing unit for which the individual performs the service that the entire service of the individual is employment under this subtitle.
Sorry for all the complicated statutory language, but it's probably easier for you to look at all this and get an idea of whether you might have a Texas wage claim, even if you're not a Texas resident, since as you can see there are conditions under which Texas would nevertheless exercise jurisdiction over your case because you completed the trip in Texas.
In answer to your other question, yes, you should be protected from retaliation under Section 405 of the 1982 Surface Transportation Assistance Act. If you are an employee and you believe you have been retaliated against in any way for making a safety complaint to the DOT, then you can file a claim under STAA with the Occupational Safety and Health Administration. You can do that here:
I hope you find this helpful. Please feel free to post a follow up if you have additional questions after reviewing this.