Claim for Unpaid Wages in Texas

I and several colleagues are in a situation with our employer where we are owed unpaid wages and benefits. Payroll is currently 3 (bi-monthly) pay periods behind, 401k has been deducted from past payrolls but not deposited in our 401k accounts, Health Insurance premiums have been deducted since August but the Health Insurance plan has not been paid and is now suspended. We have also been locked out of our office until rent is caught up, and have many personal assets currently being held by the leasor. We are all salaried employees. There are 5 of us left in the company.

Our CEO claims he is working on funding and is close, but continues to fail to meet dates for securing finances and pushes his plan/milestones (and paying us) out. While several of us are pursuing other opportunities, none have left the company as of this point.

My question is what is the best legal course of action to take to recoup what is owed us? We are to the point where we are not as concerned about maintaining our employment at this company. We are concerned that if we quit we will not see a dime of what is owed us and will be unable to claim unemployment.

Thanks in advance for any advice.

Your best recourse is to file a claim for unpaid wages with the Texas Workforce Commission. 

http://www.twc.state.tx.us/customers/jsemp/employee-rights-laws.html

It seems clear that the handwriting is on the wall for this company, so you would also be well advised to start looking for employment elsewhere.

You may report the 401(k) misuse and unpaid wages to the federal DOL.

http://www.dol.gov/ebsa/Publications/10warningsigns.html

If I were you all, I wouldn't keep showing up to work unpaid regardless, read the tea leaves and file for unemployment benefits.

I can't fathom why you'd think you wouldn't receive unemployment benefits if you quit.  It's a constructive discharge situation when you aren't being paid for your work.  Make that clear on any unemployment benefits claim.  Hanging around doesn't make it any more likely that you'll get paid what you're owed.

Another concern that we have is that the health insurance plan, for which we were having premiums deducted, was not being paid. The provider suspended our account(s) several weeks ago. The information we (employees) have is that once the plan has been fully paid up, the suspension will be raised. We can then resubmit medical expenses for reimbursement.

The larger issue is not having had a lapse in coverage. Several of my colleagues have family members with existing health issues. Going forward, getting on new plans raises the question of whether or not conditions will be considered pre-existing due to the (potential) lapse in health insurance coverage.

Does anyone have an opinion of the ramifications and/or recourse for the health insurance issue given this situation? Again, premiums were taken out of paycheks for the period of time that payroll was made, but the health insurance provider was not paid during this time.

We are also trying to balance the issue of being stuck in a health insurance plan that is suspended, but that we will have wages deducted for when/if we are paid. Given that our employer is moving forward under the assumption that he will get funding, bring payroll up to date and pay off the health insurance provider it puts us in a difficult situation of knowing whether or not we should move to new health plans. Again, the sticking point is having a lapse in coverage. As of now, the account suspension is due to the plan owing money for several months. Signing up for new individual, family plans now will likely show a lapse in coverage.

The odds suggest the ship is destined to sink!  Act to save your own skin as best you can.

Me, I;'d file today for UC --it may be only straw in wind --its NOT retroactive so file ASAP..

Assume the health coverage gap will not be cured and that you are not covered for now --sort out if you can maintain coverage via COBRA --I'm lost on that one.

If by some miracle the CEO gets the ship back afloat --solve those issues then.

Wage claims are a priority item if the ship sinks but that doesn't mean there will be any funds to pay anything.

If the 401K was taken out it has to be someplace --failure to deposit it may be a criminal issue--dig deeper

The question is how long the lapse in coverage is.

If the lapse is 63 days or longer, then yes, a pre-existing clause CAN be triggered (the fact that it CAN does not mean it WILL - many plans do not have a pre-ex clause to begin with). The longest an employer-sponsored plan can consider a condition pre-existing is 12 months under Federal law (18 months under some very limited conditions); some states have shorter periods.

If the lapse in coverage is less than 63 days, then the new plan, assuming it is employer-sponsored, MAY NOT consider any condition to be pre-ex under Federal law. An individual plan might, but as indicated above not all plans do.