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Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 20400
Experience:  Licensed Attorney with 29 yrs. exp in Employment Law
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I have an employee who just got fired. She secretly taped our

Resolved Question:

I have an employee who just got fired. She secretly taped our termination conversation without my consent. Is it legal?
I offered her a bonus payment and had her sign a waiver of liability on pay and she sent back a signed copy with alteration of the wording. No crossing out to show the prior wording, just completely modified the waiver. Is it illegal and am I still obligated to give her bonus?
Submitted: 4 years ago.
Category: Employment Law
Expert:  Marsha411JD replied 4 years ago.

Thank you for the information and your question. Texas is what is known as a "one-party" consent State. That means that recordings of conversations, whether over the phone or in person are illegal unless at least one party to the conversation consents to the recording. That one party, can be the person who is recording it as long as they are a party to the conversation. So, from the facts you provided, it does not appear that this employee violated the law. That doesn't mean she could use it in court, since there are rules of evidence that she would have to get by, but it does mean the actual recording was legal.

As far as her changing the terms of the bonus agreement. If she changed a material term, versus a correction of name spelling or something ministerial like that, then she has made a counteroffer and not accepted the original contract. That means, you would have to agree to the material changes she made or there is no agreement and you can withdraw your offer of payment of a bonus IF the bonus was a discretionary bonus. Obviously, if it was a guaranteed or earned bonus, you cannot withhold it.

Please let me know if you need any clarification. I would be glad to assist you further if I can.
Customer: replied 4 years ago.
Thank you. Specifically, on the bonus- I offerred her $ 500. During the course of the 3 months working for me, she had made cosmetic sales that can give her bonus but the terms of how the cosmetic bonus is calculated has never been disclosed. She did not make too much sales and so the bonus would not be anywhere near $ 500. So as far as obligation, her cosmetic sale bonus is very small. Is this the only bonus I am required to give her?
Expert:  Marsha411JD replied 4 years ago.
Hello again--Yes, at this point, if she changed a material term in the written agreement you gave her and that was for extra discretionary bonus, then you would only owe her what she earned. Again though if the changes are just cosmetic or you don't have a problem with the changes to the agreement, then you can sign it again and give her the discretionary bonus.
Customer: replied 4 years ago.
Thank you. Since the formula of how the cosmetic sales is not known to the employees, am I obligated to disclosed how it is calculated to arrive at the cosmetic sales bonus amount as it will be much smaller than $ $ 500? I know she would put up an argument over this smaller amount but I cannot accept what she has altered on the document she sent back to me.
Expert:  Marsha411JD replied 4 years ago.
Yes, employees must know how their commissions and bonuses are reached. Texas wage law require that they are told how their pay is calculated. That would include earned bonuses.
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