Frequently Asked Questions for the Lunchtime Live! Webinars for Employers

Answered by the Legal Team of Commissioner Representing Employers Aaron Demerson

Disclaimer: The information below does not constitute either legal advice or an official pronouncement or position of the Texas Workforce Commission, but rather is only the personal opinion of the sender. The attorneys in the Commissioner's office do not give legal advice or make official rulings on agency matters, should not be cited as authorities in any matter before the agency or when dealing with agency staff about a case, and must minimize their involvement with administrative processes. They also do not give legal advice on any other matter, and any information they give should not be used as a basis for taking any employment-related action. Before taking any employment action that could adversely affect an employee, or before using any sample form or policy you may obtain from this office, you should consult a licensed private-sector employment law attorney of your choice.

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Clicking on a link in the Table of Contents below will take you to the section where those questions are answered. Each section has a listing of the questions that are asked and answered - just click on a question to see the answer.

Table of Contents

Introduction and Essential Links and Phone Numbers

Employment Law Topics:

  1. Pay / Benefits / Wage and Hour / Child Labor / Privacy / Miscellaneous
  2. Employee Policies / Leave-Related Laws
  3. Independent Contractors / Taxes
  4. Unemployment Claims and Appeals

Introduction and Essential Links and Phone Numbers

This document contains answers and links to other resources for the most frequently asked questions at our employer conferences and webinars. Consistent with the above disclaimer, it is not legal advice, is not an official statement of TWC positions, and is not a guarantee of any particular outcome in a claim or other kind of employment-related action. Following is a list of useful employment law-related websites featuring agency guidance:


1. Pay / Benefits / Wage and Hour / Child Labor / Privacy / Miscellaneous

1. Lunch breaks

2. Overtime for weekend or on-call work

3. Contractual obligation deducted from final pay

4. EFMLA and IRS rules for children's age limits

5. Covid-19 payroll tax cuts

6. Work-at-home employee - termination and recovery of company property

7. Age limit for working in a mobile vet clinic or ambulance

8. COBRA cancellation due to non-payment during the pandemic

9. Wage rules for salaried exempt employees during the pandemic

10. Different health insurance coverage for managers and non-managers

11. Undocumented workers and tax IDs

12. Pay deduction for a disciplinary warning

13. Overtime pay with bonuses and incentive pay

14. Tax credits for FFCRA sick leave and expanded FMLA leave pay

15. Paying wages with online payment services

16. H-1B transfers / extensions and H-4 EAD approval

17. Financial assistance for providing remote employees with technology

18. Best way to incorporate a cleaning business

19. Hazard / hazardous duty pay

20. Carry-over of unemployment taxes paid by a predecessor to a successor company

21. Year-end Covid-19 tax reporting, extensions, and payments

22. Tracking and verifying online training time

23. Is Texas still an hour-worked / hour-paid state?

24. Federal posters for virtual offices / remote workers

50. 2021 tax rate notices - when will they be mailed?

51. UI tax discounts for self-employed employers

52. Availability of further federal UI benefit programs

1. How many hours does an employee have to work before taking lunch?
Since lunch breaks are optional under Texas law, the lunch break schedule would be determined by the company.

2. Currently, we pay overtime if our field technicians work more than 40 hours a week, regardless if it's a short week. We've implemented weekend on-call rotations. If the employee does not work 40 hours and it is his turn to be on call on the weekend, should we be paying overtime on the weekend?
Overtime pay does not depend upon when the work occurs, unless extra pay for working at night, or on weekends, or on holidays is part of the wage agreement. Overtime pay is owed only on time actually worked in excess of 40 hours in a seven-day workweek.

3. We had a physician employee under a two-year contract and as part of the terms for the contract, when it ended, he was supposed to have purchased liability tail coverage and he did not. Would it have been possible for us to have withheld the cost of tail coverage from his final pay since it was required per the contract or would that have to be specifically stated, that it would be withheld from final pay?
A deduction from pay like that would have to be specifically authorized by the employee to be valid under the Texas Payday Law. The contractual duty to purchase such coverage would help in a contract-based lawsuit in court, but for the money to be deducted from the employee's pay, specific written authorization for a pay deduction for that purpose and in that amount would be necessary.

4. The interplay between DOL EFMLA and IRS rules is confusing, regarding children under 18 v. IRS children under 14. Any help you can give would be great. Thank you.
The DOL definition of "son or daughter" under the EFMLA is explained in the DOL FFCRA FAQ file at For IRS purposes, see, which explains that the tax credits associated with FFCRA payments are governed by DOL's rules under the FFCRA.

5. What are the payroll tax cuts for COVID? Are those optional to implement?
The temporary extension of due dates for Social Security taxes is a very complex issue that an employer should discuss with the IRS or a tax professional, such as a CPA or a tax attorney. The official IRS guidance is at; the index of local IRS offices and their contact information is at

6. How do I terminate a work-at-home employee and recover company property?
Exactly how your company may terminate the employee of a work-at-home employee is up to the company, but would generally involve using a documentable way to give effective notice to the employee that his or her services are no longer needed after a specified date. Recovering company property would necessitate a mutual agreement, preferably worked out before the need arises, signed by the employee and by a company representative. See and in our online book for further information.

7. Can a minor (16 - 17-year-old) work on a mobile vet unit or ambulance?
Yes, as long as the minor does not drive the vehicle or become exposed to radiation or hazardous substances. For a complete list of prohibited hazardous duty occupations, see

8. What are the laws regarding COBRA cancellation due to non-payment during the pandemic?
The special extension of COBRA premium payment deadlines is explained in Section III(A)(3) of the official IRS, Treasury Department, and DOL Joint Notice document ("Extension of Certain Timeframes for Employee Benefit Plans, Participants, and Beneficiaries Affected by the COVID-19 Outbreak") at

9. What are the wage rules for salary employees - do you have to pay them their full weekly wage if they work at any time during the week?
Generally, no, if an employee misses work due to personal business or illness, but specific reasons matter. For a complete list of legal deductions from the salaries of exempt salaried employees, see

10. Can we offer different levels of employee benefits for different positions? For example, pay 100% medical coverage for management staff and pay 50% medical coverage for general staff?
While many types of benefits may be different for different categories of employees, special rules apply to health and retirement benefits. For health benefits, insurance laws and regulations allow insurance carriers to set standards for group plans regarding coverage, premiums, employer contributions, and so on. See and

11. Is it possible for an undocumented worker to get a number from the IRS to file taxes? How do I handle that as an employer if they have a tax number, but not a SSN?
If an undocumented worker cannot satisfy I-9 requirements, your company would not be able to legally employ them. That is a question under federal immigration and tax laws. The IRS will not issue a tax ID without at least some documentation. See and for official IRS guidance.

12. If an employee was given a warning letter of non-compliance, can the employer deduct a percentage of the hourly rate if it is stated in that letter for a second non-compliance?
The Texas Payday Law would require specific written authorization, signed by the employee, for a deduction from wages for a reason like that. In addition, such a deduction cannot take an employee's pay below minimum wage.

13. How can I offer bonuses or other incentives to non-exempt employees without making my overtime calculations a nightmare?
There is no way to avoid an overtime pay calculation with non-discretionary bonuses, i.e., bonuses that are promised or provided for in the wage agreement, or commissions for employees who are not exempt from overtime pay. Discretionary bonuses do not have to be considered when paying overtime. See

14. Do you know how the money we've spent on payroll (not just payroll taxes) for COVID-19 quarantine hours (up to 80 hours) and for the extended family coverage (up to 10 weeks additional at 2/3 pay) will be paid back to the employers?
Tax credits for FFCRA sick leave pay and expanded FMLA leave are explained on the IRS website - see the commentary and links at

15. If your business is too small to do direct deposit for employees, is it "bad" to pay them via Paypal, Venmo, or Zelle, if they do not want a paper check?
Paying wages with online payment services is not a bad thing. However, like any other wage payment method, the employer must do it in a way that is documentable and verifiable. The employer should also obtain the employee's written authorization to pay wages that way. Since online payment services would involve an electronic transfer of wages, the employer should follow the rules outlined at

16. H-1B transfers / extensions and H-4 EAD approval is taking longer than usual. Any specific reasons? Please advise.
Immigration law is purely a federal matter, and many immigration-related employment decisions are influenced by political and economic issues in the nation's capital. You can find basic information on those visa topics at (H-1B) and at (H-4).

17. Is there assistance available to employers to provide computer equipment for remote workers, or for employees that want to work, but don't have the appropriate technology (computer, whether desktop with double screens, mouse, CPU and keyboard, or even a laptop with headset)?
The U.S. Small Business Administration may be able to help with loans ( and grants ( In addition, try contacting a business services representative with the local Workforce Solutions office (the statewide directory is at

18. What is the best way to incorporate a cleaning business?
Start with the Governor's Small Business Handbook at, then check out for information on starting your business. For information on permits, see that office's guide for business permits at For organizing and registering your business with the state, see the resources of the Secretary of State's Office at Your city may have an office where you can register locally - consult your city government's website for further information.

19. Are employers required to pay a hazard pay to employees, especially those in the medical field? If so, how is that calculated?
Hazard pay is not required under federal or Texas laws for the vast majority of Texas employees. However, some employers choose to give extra pay for hours spent performing hazardous duties. There is no specific formula for such optional pay. As with any kind of wage agreement, hazard pay should be clearly defined in a written wage agreement signed by each affected employee.

20. When a company merges with another company and starts a new company with new tax ID, does the up to $9,000 paid for each employee carry over? Or does the new company pay in for those again?

Unless your company is a licensed PEO covered by Section 91.044(a-1) of the Labor Code, there is no carry-over of unemployment taxes paid by a predecessor company to the successor entity. The new company would begin paying UI taxes on the first $9,000 of wages paid to the acquired employees, as soon as it acquires the predecessor entity.

21. How can we prepare for year-end reporting and tax filing? Any suggestions or recommendations? Especially with COVID, there are so many different credit adjustments and forms to look out for. Can we get a simplified easy-to-reference FAQ?
The best source of information for federal tax filings, extensions, and payments is on the IRS website at As always, consult your favorite CPA or tax attorney regarding any complex situations.

22. What is the best way to pay employees for online training, hourly or per training, ensuring they are actually doing the training for the amount of time that they say?

Since federal wage and hour law requires employers to track the exact hours each non-exempt employee works, an hourly training pay rate is probably the easiest way to go. Search for online training vendors with systems that help employers track and verify employees' participation, and use written policies to ensure that employees know that their participation in the full training will be tracked and verified, and that anything less than full participation will be treated as a policy violation and dealt with accordingly.

23. Texas is an hour-worked / hour-paid state - does it still apply during the pandemic?
Yes - see for topics relating to federal regulations for hours worked.

24. How do employers handle federal postings for work at home employees?

See the "Required Posters" topic at, item 5.

50. When are 2021 TX SUI tax rate notices being mailed to employers? When are 2020 chargeback discrepancies being resolved?

TWC will be mailing 2021 tax rate notices to employers in mid-February, 2021. The agency's Unemployment Insurance Division is working on resolving disputed chargebacks as quickly as agency resources and appeal processes allow.

51. Since we are self-employed, can we get some discount on taxes?

The law does not provide for any distinction on tax rates between businesses that are sole proprietorships and those that are partnerships or have a corporate organization. All employers' tax rates are based on their unemployment claim experience. Detailed tax rate calculation information is online at

52. If there is another shutdown, will there be a separate program other than TWC unemployment that employees can apply for?

That would depend upon whether the new administration in Washington, D.C. can agree with Congress that special federal unemployment programs are needed for 2021. Let your elected officials know how you stand on that issue.

Employee Policies / Leave-Related Laws

25. Use and abuse of vacation time

26. Call-in and absence notice policy

27. Vaccination requirement for employees

28. Permission to use employee information on social media

29. Refusal of job duty based on religious belief

30. Recommendation letter - mandatory? Time limits?

31. Does FFCRA leave apply to virtual / online classes? 500 or more employees?

32. Injured employee, medical leave, and health insurance

33. Absences of employee to take spouse to medical visits

34. Return to work for an employee who has been working remotely

53. How many times does FFCRA paid sick leave need to be paid?

54. Are even small businesses covered by the FFCRA?

25. What is the proper wording to make sure paid time off (vacation) is used, but not abused? Meaning one person takes advantage of being off to the detriment of the rest of the office staff.
Texas employers have the authority to establish rules regarding how much vacation time is available to employees, how requests for time off are made, whether the request to use such time is granted, and consequences for those who defy the employer's instructions. For more information: Sample vacation leave policy language:

26. What is the rule regarding employees calling in for their shift? Right now, we have a 2-hour call-in policy, but 2 hours is not enough time to fill a shift. What can an employer require of staff calling in for their shift?
Texas employers may determine what the absenteeism/tardiness/call-in policy requirements are for their business. However, employers should ensure that their call-in policies are reasonable and reasonably enforced. For information on attendance policies, see and

27. If a Covid-19 vaccine is approved, can employers require his/her employee get the vaccine?
Mandating employee vaccinations is not recommended, since it could violate an employee's sincerely-held religious beliefs under Title VII, or could pose a danger for those with medical contraindications. For more information, see: Please also see:

28. Most businesses have a heavy social media presence. Must an employer obtain permission to use his/her employee's name in a post?
While not technically required, it is a best practice for employers to obtain written permission from employees before using their name in an online post. The exception would be an online company directory or roster, such as a "Contact Us" page.

29. Can a staffer request not to do a job based on religious belief?
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on religion. Employers are required to reasonably accommodate an employee for his or her religious beliefs, unless doing so would pose an undue hardship to the business:

30. Is the employer obligated to provide recommendation letters to former employees? Is there a time period after they leave the facility? How to decline without them retaliating on social media?
There is no law that requires employers to provide recommendation letters to former employees. Since there is no obligation to reply, there is also no time limit. Regarding how to decline to furnish a recommendation letter, there is no one-size-fits-all answer, as individuals may react differently to an employer's refusal to provide a recommendation letter. As a best practice, many employers prefer to keep any responses short, succinct, and professional.

31. Is the COVID FMLA for staying home with children to attend virtual school? Does this pertain to employers with more than 500 employees?
The expanded FMLA under the FFCRA applies to virtual school situations where the physical school is closed, but classes are held online. See question 70 in the DOL's FAQ document at The FFCRA does not apply to employers with more than 500 or more employees.

32. We have an hourly employee who has been with us less than a year and recently had a back injury. She is a cleaner for our new construction projects, a physical job. She is unable to work and doesn't qualify for FMLA based on time on the job. At this point, we are unsure how long she will be out. She does great work, so assuming she gets released from a doctor in the future, we would want to keep her on. What can we do in the interim? Is there a medical leave we can offer where she can pay for her medical, etc., similar to FMLA?
Medical leave is a matter of company policy and reasonable accommodation under the ADA, if her injury is such that it counts as a disability; see for EEOC guidance on the ADA. If your company has a group health plan that covers that employee, she would presumably qualify for COBRA benefit continuation under Texas and/or federal laws. See in our book online for basic information on the COBRA laws.

33. If an employee is continuously absent because he provides transportation for his sick wife who has to have dialysis a couple times a week, takes her to doctor's visits, etc., would we be able to terminate him without breaking any laws? Due to COVID, we have a skeleton crew and it has become more difficult to be flexible with him. This is causing a burden on our business and other employees. How do you recommend that we proceed?
The ADA does not require reasonable accommodation for the illnesses of others, but the FMLA may provide the employee the right to take intermittent leave to tend to the serious health condition of his wife. See and for official guidance from the EEOC and the DOL.

34. If an employer previously approved an ADA accommodation for an employee to work from home due to being in a high-risk category for contracting COVID-19, but we now want to make alternate arrangements so that the employee may return to working onsite (e.g., isolated office space available), what is the recommended process?
Ensure that the work environment meets all recommended CDC, OSHA, and local health authority standards and Covid-19 precautions, and document the work offer given to the employee. If the employee has filed an unemployment claim, a work refusal may be reported via for investigation by TWC.

53. Once an employee is granted FFCRA, can they only obtain it once? Can the employee be granted another 2-weeks' pay if exposed again at some later point?
The FFCRA only requires a one-time payment of up to 80 hours of leave. Once the 80 hours have been paid out by the employer, the employer has met its obligation under the law, and it does not reset.

54. We are small business less than 20 staff. Am I supposed to pay any compensation to my worker who tested positive for COVID 19, even though we don't have any benefits?
The Families First Coronavirus Response Act (FFRCA) requires employers to pay employees up to 80 hours of leave at 100% of the employee's regular rate of pay, if one of six conditions are triggered. One of those conditions is that the employee has been advised by a healthcare provider to self-quarantine related to COVID-19. More information here:

Independent Contractors / Taxes

35. W-2 and 1099 for the same worker

36. Support for child care centers / chargebacks and tax rates

37. Regular layoff, followed by disaster-related layoff - tax rate increase?

38. Tax rate increases for 2021?

39. State UI tax on employer's children who are employees

35. Can an employee be on payroll (W-2 employee), and also have a 1099 distributed for a completely different role?
This may be possible depending on the circumstances. The IRS has some information on this topic that you can find by visiting the following webpage: Businesses can also contact the IRS directly for help and can find contact information at the following page: In addition, other agencies with their own interpretations of independent contractor guidelines should be consulted, such as the U.S. Department of Labor (see and TWC (see The latter link leads to an article with details about all of the major tests used for determining employment status under various laws.

36. Will there be additional support for Child Care Centers? Will our business be penalized with TWC for unemployment? I am asking if my unemployment rate will go up?
The TWC has a webpage with resources for Child Care Programs which you can visit at the following link: In addition, FAQs related to child care can be found at the following link: Concerning unemployment claims, each claim is handled on a case-by-case basis. If a claim determination results in a chargeback to the employer, the employer's unemployment tax rate could go up. For more information on employer unemployment benefit chargebacks, please visit:

37. Will an employer's rate be affected due to a regular layoff that happened between January thru mid-March and then the Presidentially-Declared Disaster came into effect - will my rate still be affected?
Each unemployment claim is handled on a case-by-case basis. If a claim determination results in a chargeback to the employer, the employer's unemployment tax rate could go up. Information on unemployment benefits basics, including information on types of job separations, can be found at the following link:

38. Any projection on increased experience ratings for 2021?
Information on unemployment insurance tax rates can be found at the following webpage: For specific questions about unemployment tax rates, employers can contact the TWC tax department directly using the tax contact information found at the following link:

39. Do we need to file SUTA tax if employees are children of business owners and pay is not subject to FUTA tax?
For this question, please contact the TWC tax department directly using the tax contact information found at the following link:

Unemployment Claims and Appeals

40. Unemployment benefits during unpaid FMLA

41. Unemployment benefits for self-employed individuals

42. Effect of unemployment claims on employers

43. Does everyone who files a claim qualify?

44. Why does it take so long for benefits to start?

45. Can you work part-time and still qualify for benefits?

46. Two-week notice of resignation and unemployment claims

47. Employee quits and files a disaster claim

48. Will TWC keep the Employer Work Refusal Documentation portal?

49. Exceptions to claim response and appeal deadlines

55. CARES Act relief for reimbursing employers

40. Can a claimant receive unemployment benefits when out on unpaid FMLA?
If an employee stops performing services for pay, the employee is generally considered unemployed and would be able to file an unemployment claim. Whether or not the employee receives benefits depends first on reason the employee stopped working. The employee must be out of work through no fault of employee. The employee must also meet the eligibility requirements, such as being medically able to work fulltime and being available to accept an offer of fulltime work. See Employees on FMLA are usually found ineligible to receive benefits because the events that qualify them for FMLA leave preclude them from being medically able and/or available for fulltime work.

41. Do self-employed qualify for unemployment?
If you are self-employed, a contract worker or previously worked in a position that did not report wages, you may qualify for unemployment and can apply. See

42. How do unemployment claims affect the employer during the pandemic?
In most cases, for non-Covid-related job separations, the employer will be financially liable (through either chargeback or reimbursement liability) if an employee is out of work through no fault of the employee. See For job separations resulting from the Covid-19 natural disaster, taxed employers are eligible for chargeback protection. While reimbursing employers do not have the same protection, they do have some relief under the CARES Act.

43. Does everyone qualify for unemployment?
Not everyone who applies for unemployment benefits will qualify for unemployment benefits. Each case is considered individually on its own merits.

44. Why is it taking so long for employees to receive UI or Shared Work payments?
Any delay is likely related to the unprecedented number of claims that were submitted as a result of the pandemic.

45. Can you work part-time and still receive UI?
Yes, a person can work part-time and receive unemployment benefits. If an employee has experienced a reduction in hours from fulltime to part-time, depending on the wages received on a weekly basis, the employee may be considered partially unemployment and be entitled to unemployment benefits. See

Employees who participate in an approved Shared Work program can also work part-time and receive unemployment benefits. See

46. If a staff member gives two weeks' notice of resignation, can the employer ask that staff not to come to work prior to the resignation date, and does the employer have to pay until that resignation date?
As long as the employee is an at-will employee, if an employee gives two weeks' (or less) notice of resignation, the employer can accept the resignation before the end of the two-week notice period without obligation to pay the employee through the end of the two-week period. In other words, the employer is responsible to pay the employee through the last day worked, not through the last day of the two weeks' notice. See

47. Are you paying UI to those individuals who quit and report "disaster" when filing a claim?
Depending on an employee's reason for quitting, the employee may qualify for unemployment benefits. Each case is considered individually on its own merits.

48. Will the Employer Work Refusal Documentation process continue past the disaster declaration?
If an employee is requesting unemployment benefits, the employee may be disqualified from the receipt of benefits if the employee refuses, without good cause, an offer of suitable work. This requirement was in effect before the pandemic and will be in effect after the pandemic. It is likely that TWC will continue to use the Employer Work Refusal Documentation Portal at after the pandemic as a means for employers to report individuals who refuse offers of work.

49. In light of the Public Health Emergency due to COVID-19 and impact of Hurricane Laura, were there any timeline deadline consideration given to employers for submitting unemployment claim responses? If so, were TWC employees informed of this change? We were overwhelmed by the number of unemployment claims that were submitted to our agency. The circumstances in which we have had to function in the healthcare industry has been mind-boggling, to say the least. We have received responses indicating that our rights to claims has been relinquished due to a one-day late response. After all we in the healthcare industry are dealing with, you would think some consideration would be given to the employers who are struggling through events to maintain these frontline "heroes".
As a general matter, TWC does not have discretion or authority to waive or extend the claim response or appeal deadlines that are in the law. Those deadlines were imposed by the Texas Legislature, based upon the federal laws enacted by the U.S. Congress, and so any changes would have to be enacted by elected officials. That having been said, TWC, based on court decisions and federal regulations, has recognized some exceptions to the deadlines in cases where independent and credible evidence shows that a late response or appeal was due to factors outside of the claimant's or employer's control, such as misdelivery or non-delivery of mail, TWC error in addressing correspondence, use of wrong information in describing a party to a claim, unavailability of phone, fax, or online systems due to system failure or overload, or similar problems. Each such case will be investigated and considered on the basis of its individual facts, and the appealing party should be as specific as possible in describing the problem, both when appealing and when testifying during an appeal hearing. See, in general, Commission Rule 815.32 at$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=40&pt=20&ch=815&rl=32.

55. We are a non-profit organization that does not pay quarterly unemployment taxes - instead, we pay reimbursements whenever one of our former employees receives UI benefits. Does the CARES Act afford any relief from the cost of reimbursements?
Under the CARES Act, reimbursing employers are entitled to a 50% “rebate” or refund of reimbursements they pay on all unemployment claims from March 15, 2020 through December 26, 2020, not just the ones resulting from the pandemic. The general procedures is that TWC bills the reimbursing employer, the employer pays 100% of the reimbursements that are billed, TWC reports that to the U.S. Department of Labor, DOL sends TWC a payment out of federal CARES Act funds for 50% of the reimbursements paid, and TWC then refunds / credits that amount to the reimbursing employer. Billing payment deadlines for all quarters in 2020 have been extended through March 1, 2021 due to the CARES Act and the pandemic.

Contact Commissioner Demerson's office:

E-mail: –– Phone: 800-832-9394 / 512-463-2826