See Dkt. 40 at 14 (citing D'Onofrio v. Vacation Pubs., Inc., 888 F.3d 197, 211-12 (5th Cir. 2018); Byun v. Hong, 641 S.W.3d 821, 824-25 (Tex. App.-Tyler 2022, no pet.); Forum US, Inc. v. Musselwhite, 2020 WL 4331442 (Tex. App.-Houston [14th Dist.] July 28, 2020, no pet.) (mem. op.))

Byun, cited by Globus, is less convincingly analogous than Rieves. First, the “advance agreement” in Byun-whose full text is unavailable, but, as reprinted in the opinion, states that “[employer] shall advance to [employee] the difference when the gross income for [employee] falls below $4,200 per month”-involved “advances against unearned commissions.” Byun v. Hong, 641 S.W.3d 821, 825 (Tex. Ct. App. 2022). Here, the October 2021 FSIAA clearly defines MMGD payments as advances against “current . . . income.”

at *2 (S.D. Tex. Sept. 25, 2024) (citations omitted). “An employee asserting a claim pursuant to the Payday Law may choose to either file an administrative claim with the TWC under the Payday Law or a common law breach of contract claim in court.” Byun v. Hong, 641 S.W.3d 821, 829 (Tex. App.-Tyler 2022, no pet.). Therefore, Plaintiff's claims for violation of the Payday Law should be dismissed.

But “Chapter 62 of the Payday Law explicitly provides for a private cause of action for failure to pay minimum wages, and the Legislature's ‘express inclusion of a private right of action in chapter 62 and omission of that language in chapter 61 strongly suggests that the legislature did not intend a private right of action under chapter 61.'” Byun v. Hong, 641 S.W.3d 821, 829 (Tex. App.-Tyler 2022, no pet.) (emphasis added) (quoting Abatement, 324 S.W.3d 858, 864-65)

However, an employee seeking to recover unpaid wages has the option of either filing a claim with the Texas Workforce Commission or filing a common law breach of contract claim in court. Byun v. Hong, 641 S.W.3d 821, 829 (Tex. App.-Tyler 2022, no pet.) (emphasis added)

See Tex. Lab. Code Ann. §§ 61.001-.095; Byun v. Hong, 641 S.W.3d 821, 829 (Tex. App.-Tyler 2022, no pet.). An employee who has been denied wages may file a claim with TWC for the amounts that are due and unpaid.