Category Archives: Personnel Policies

by | April 8, 2013

Preventing Guns in Your Texas Workplace

In 2012 in the state of Texas, 584,850 citizens were actively licensed to carry a concealed handgun. That amounts to approximately one legally armed citizen out of every 45 people in Texas. As a business owner or manager, if you do not want anyone carrying guns on your commercial premises because you are concerned about the potential violence that could occur, you have two options. First, you can prevent your employees from carrying a handgun by having a written policy prohibiting that in your employee policy manual. However, a recent amendment of the law does allow employees to have their gun locked in their vehicles, even if they are parked in a parking lot on your property.

Second, to prevent the public from carrying a concealed handgun on your property, you must have a “30.06 sign” posted in a conspicuous place clearly visible to the public (at every entrance is the best idea). The sign requirements are a single sign, both in English and Spanish, with 1” high letters, in contrasting colors, containing the exact language from the Texas Penal Code section 30.06. The language in English must read: “Pursuant to Section 30.06, Penal Code (trespass by holder of license to carry a concealed handgun), a person licensed under Subchapter H, Chapter 411, Government Code (concealed handgun law), may not enter this property with a concealed handgun.”

Other signs, such as a picture of a handgun with a red slash through it, are ineffective in Texas and concealed handgun license class instructors tell their students to walk right past those signs. There is a one other valid sign in Texas called the 51% sign, but that only applies to prohibiting the public from carrying handguns on a premises that receives more than half of its income from serving customers alcohol.

It is still illegal for licensees to carry a handgun in Texas at a federal building, at a school, at a public sporting event, in a courthouse, at an election polling place or in a jail or prison, even if those places do not post any kind of sign prohibiting the carrying of a concealed weapon.

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by | December 3, 2012

Employers Refuse to Recognize Rocky Mountain High

Many of my Texas clients also have offices in Colorado. Since that state legalized the recreational use of marijuana in November, I’ve begun receiving questions from my clients with locations in Colorado about their workplace drug use and testing policies. They want to understand their rights in light of the legality of marijuana in that state.

Legalized marijuana should be no more difficult for employers to handle than alcohol. If an employee is drunk on the job, you as an employer have a right to test him and to fire him for reporting to work under the influence of alcohol. An employee who is high on marijuana at work presents the same issue. However, marijuana shows up on drug tests long after the body has processed and gotten rid of alcohol. In other words, an employer testing on Monday won’t know that the employee was drunk on Friday night.  But if the employee got stoned on Friday night, testing on Monday will reveal that fact. Employers are therefore concerned that they won’t be able to fire an employee who tests positive for marijuana use but can’t be proven to be high at work. This generates anxiety for safety-conscious businesses.

At this point in time in the Fall of 2012, marijuana is still illegal in the United States, and therefore in every state. Just because an employee isn’t in violation of Colorado state law by smoking weed, he is still in violation of federal law and can be in violation of the employer’s substance abuse policy if it is well-written. Therefore, as an employer, make sure your policy states that, along with being under the influence at work, the use, possession or sale of illegal drugs is prohibited, and illegal drugs should be defined as any drug that is illegal under municipal, state and/or federal laws.

The federal Department of Transportation announced in December 2012 that state legalization of recreational pot would not change the rules prohibiting marijuana use by employees in safety-sensitive positions such as truck drivers, pilots and school bus drivers. Therefore, explaining away a positive test for marijuana by saying it was used legally in Colorado will not be an acceptable excuse and will still subject truck drivers, for example, to suspension of driving duties. Employers can take the same approach by letting employees know that the employer’s safety requirements will not be affected by state laws legalizing marijuana and that employees will still be subject to discipline up to and including termination for any drug test that shows marijuana use.

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by | November 16, 2012

Requiring Professionalism from Your Employees

Tiffany rolls her eyes when you give her a task to perform. Chris and Spencer can’t get along and constantly bicker in the workplace. Maggie complains about the unfairness of how work is assigned.

Each of these employees lacks professionalism. While professionalism is hard to define, we all know it when we see it. I call some of these workers “finger-pointers”, some “whiners”, and the rest “brats”, but all of their behavior is immature and difficult to bear in the workplace. Unfortunately, most supervisors will just say that the employee has a “bad attitude” and will be reluctant to coach or encourage better behavior from these employees. Then, when the bad attitude dude is fired, it is difficult for the company to win an unemployment compensation appeal or a discrimination suit because there is rarely a policy in the employee handbook that says, “Thou shalt keep a good attitude at work”.

But every handbook can include a professionalism policy. Your policy could read something like this: Continue reading →

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by | March 9, 2011

Employer’s Guide to Social Media

Sally Sassy, one of your best customer service representatives, posts pictures on her Facebook page that show her drunk, in a skimpy bikini and kissing many different men, even though she is married. Several of your customers are her “friends” on Facebook.

Derek Downer, likes to post negative comments on My Space about everything, including his job with your company as a bookkeeper. He often talks about how he hates his boss, disapproves of his coworkers, and thinks your company’s latest project is doomed.

Gail Gossip has a personal blog where she chronicles all of her feelings about work, including stories about her coworkers’ professional and personal struggles. Her blog is open to anyone who wants to read it.

Hayden the Human Resources director at your business uses Linked In to network with others in your industry, including finding well-qualified candidates for openings at your company.

All of these employees are using social media on the internet, in some ways that benefit your company but in other ways that can damage your business’ reputation or even your profits.

As the employer, you can adopt a policy to instruct your employees as to which posts on the internet are appropriate and professional and which are not. The only legal restriction comes from the National Labor Relations Board, which prohibits employers from adopting policies that restrain employees from engaging in concerted activity or from forming unions. The NLRB says that you cannot impose blanket restrictions, such as “employees cannot post any negative comments about this company.” Employees are free to discuss salaries, working conditions or terms of employment in person or on the internet.

However, you can expect your employees to use good judgment on the internet. You can direct your employees to protect your company’s trade secrets and confidential business information. You can prohibit the use of your logo. You can also require them to be professional and respectful towards your customers and your other employees. You can require them to get the permission of others before mentioning them on the internet as a way of protecting the privacy of your other employees, vendors and customers who might be appalled to find their personal business posted without their permission.

You can also remind employees that your other policies should not be violated on the internet. For example, an employee who posts sexual comments on a coworker’s blog or Facebook page may be violating your company sexual harassment policy and can be disciplined for that. Your company ethics and values policies may also prohibit certain inappropriate actions.

You can also limit the use of company computers, networks and company time for social media activity. You do not have to allow your employees to spend hours per day on your business computer updating their personal blogs.

As with any employee activity that could turn ugly, the best advice is that you as an employer adopt a written policy now, publish it to all of your employees, and prevent the problems before they happen.

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by | February 17, 2010

Protect Your Business From Embezzlement

There was an insignificant story in the Amarillo newspaper last week about a former credit union employee who was sentenced to 30 months in federal prison for stealing $221,000 from her employer over a seven-year period. At least it seemed insignificant, based on the placement in the paper. But to her employer, I know it was very significant.

I’ve advised many employers in the Panhandle of Texas who have lost money to thieving employees. It has happened to large companies, small businesses, non-profits and for profits. I’ve dealt with embezzlement at banks, car dealerships, doctor’s offices, law offices, construction companies and charities. Each employer feels embarrassed to have been deceived, angry over the missing money (often which will not be recovered) and mistrustful of all employees from that point forward. Those reactions are understandable, since most embezzlement could have been prevented with some careful policies and practices.

Of the three factors leading to embezzlement, motivation (financial pressures), opportunity (access to company cash or accounts and a lack of corporate controls in place) and rationalization (its just a loan or my rich boss won’t miss it), opportunity is the only part of the equation that the business can control. Here are some of the ways to do this:

  • Thoroughly screen potential new hires by requiring a criminal history and by talking to past employers.
  • Never let any one employee, no matter how long tenured and how trusted, handle all the bookkeeping. You need a system of checks and balances.
  • Know your employees and consider the telltale signs of a potential problem: gambling losses, large medical bills, credit card debt, a standard of living above all possible income, etc.
  • Make every employee who has access to company funds take a long vacation every year while another employee performs his work and double-checks the procedures the absent employee follows.
  • Never sign checks that aren’t completely filled in or that lack supporting documentation like an invoice.
  • Require two signatures on checks over a certain amount, such as $500.
  • At least once per month, do your own mini-audit. Carefully check company credit card bills, cash flow and deposit slips, accounts payable, and other vulnerable items.
  • Have your business audited annually by an independent accountant.
  • Immediately fire any employee about whom you have strong evidence of theft. This person is not going to be rehabilitated through progressive discipline. And don’t worry about the fallout. If you can prove theft by the terminated employee, you will be protected from unemployment or discrimination claims.
  • Prosecute any thief to the full extent that the law allows. Often this is required by the insurance company if you want to recoup any of your losses. Some employers, like banks, are hesitant to do this because of the bad press it could cause. I think every employer has a societal obligation to prevent this from happening to another business by making sure the theft shows up on that employee’s criminal record from now on.

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by | February 2, 2010

DOT Bans Truck Driver Texting While Driving

As a follow up to yesterday’s post on employer liability for employees who cause an automobile accident while using a cell phone, it is worth noting that the federal Department of Transportation just announced a prohibition of texting while driving for all interstate truck drivers, commercial bus drivers and van drivers who carry more than eight passengers. The law will be enforced with civil or criminal penalties, including fines up to $2750.

The Federal Motor Safety Administration’s research shows that drivers who send and receive text messages are distracted for 4.6 seconds out of every 6 seconds. So these drivers have their eyes off the road more than three-quarters of the time they are driving and texting.

The federal government has set an example for private employers not only by banning texting while driving for interstate truckers, but also for all federal employees. President Obama signed an executive order at the end of 2009 directing federal employees not to text while driving government-owned vehicles or while operating government-owned equipment. That is exactly the kind of written policy that all private employers should have.

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by | February 1, 2010

Employee on Cell Phone in Car can be Costly for Employer

Debra Ford was driving on Interstate 16 in Georgia when her car was hit by a sedan driven by Vanessa McGrogan, an International Paper Company employee who was driving a company-owned car with the cruise control set at 77 mph in a 70 mph zone and according to a witness, talking on her company-issued cell phone at the time of the accident.

Ford’s car was overturned and slid along the asphalt and Ford’s arm got trapped between the car door and the pavement, leading to an amputation of her arm up to the shoulder.

Who do you think had to pay to settle the lawsuit that inevitably followed this horrific accident? International Paper, of course.

The employer-issued cell phone and company vehicle guaranteed that the party with the deepest pockets would be sued. McGrogan’s employer settled the case for $5.2 million in 2008.

Cell phone use also led to a woman who was severely injured by a salesman involved in an accident while he was talking on his cell phone being awarded $21 million by a Miami jury in a suit against lumber wholesaler Dykes Industries in 2001. The salesman was driving on company business at the time and talking on his cell phone.

In January 2010, a lawsuit in South Carolina was settled for an undisclosed amount just hours before trial. At stake was $55 million in insurance carried by the employer of Sharon King, who was not working at the time of the incident, but was driving a company vehicle and talking on her cell phone when she allegedly hit two bicyclists riding in a charity event. King pleaded guilty to a reckless driving charge.

The King case has received so much publicity in South Carolina that the legislature there is fast-tracking legislation to ban texting and talking on hand-held cell phones while driving. Some of that urgency may have resulted from the brilliant (and inflammatory) pretrial statement of one of the attorneys for the cyclist’s estate who called cell phone use in cars “the new DUI”.

Texas does not ban hand-held cell phone use for anyone other than bus drivers. What that means is that as a Texas employer, you have to take responsibility for training and monitoring your own employees who could put the company’s assets at risk by driving and talking or texting.

A texting driver is 23 times more likely to have an accident or come close to having an accident than a driver who is paying attention to her driving, according to a Virginia Tech study.

The National Highway Traffic Safety Administration says that 25% of all crashes are caused by distraction. Talking on a hand-held cell phone while driving has been shown to be significantly more distracting than eating or talking to a fellow passenger. And we can all agree that texting while driving is idiotic.

So how does an employer prevent its employees from exposing the company to enormous liability while driving?

Reconsider whether the liability associated with issuing company vehicles and company cell phones is worth the perk. Many companies would rather reimburse an employee his mileage for using his own car during work hours or pay a cell phone allowance than to assume the 24-hour per day liability that is associated with a company vehicle and a company cell phone.

You also need a written policy and extensive training of every employee followed by strict disciplinary enforcement of the policy prohibiting any use of a hand-held cell phone while driving on company business. Although a complete ban of cell phones in cars would be the safest policy, if that is impractical, you can at least buy Bluetooth headsets for your employees to discourage any hand-held cell phone use.

Finally, check your company liability insurance policies to make sure you are well covered if anything as horrendous as the King case happens to one of your employees.

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by | May 4, 2009

Smoking Policy Suggestions

Since 1966, we have been warned of the dangers of smoking. Here is a brief history of the Surgeon General’s warnings on cigarette packages:

  • Caution: Cigarette Smoking May be Hazardous to Your Health (1966-1970)
  • Warning: The Surgeon General Has Determined that Cigarette Smoking is Dangerous to Your Health (1970-1985)
  • SURGEON GENERAL’S WARNING: Smoking Causes Lung Cancer, Heart Disease, Emphysema, And May Complicate Pregnancy. (1985-)
  • SURGEON GENERAL’S WARNING: Quitting Smoking Now Greatly Reduces Serious Risks to Your Health. (1985-)

And yet, many businesses still wrestle with whether the company should have a nonsmoking policy for its employees and visitors. Legally, a company in Texas is free to make any policy it wants regarding smoking on the job or in its facilities.

Should your company have an anti-smoking policy? If you are paying all or part of your employees’ health insurance premiums, you should have a smoke-free workplace policy for economic reasons, if no other reason. A federal study based in Pueblo, Colorado, demonstrated that the rate of hospital admissions for heart attack declined 41 percent in the 18 months after a city smoke-free ordinance took effect compared to the 18 months prior to the ordinance. According to the Centers for Disease Control, smoke-free laws likely reduce heart attack hospitalizations both by reducing second-hand smoke exposure and by reducing smoking. Just think what that kind of reduction could do to your group health insurance premiums!

Since Amarillo and most Texas Panhandle towns have no city ordinances banning smoking, employers have to make their own decisions about what to do. Few employers allow employees to freely smoke in the building. Many Texas employers choose to create areas outside of the building and away from the entrances in which smoking is allowed. Others take it farther and ban all smoking on the premises. Baptist St. Anthony’s hospital in Amarillo created a brief uproar last year when it expanded its smoke-free campus policy to a blanket refusal to hire smokers at all. This is the most stringent smoking policy of which I am aware.

How do you institute a smoking policy at your company? Here’s a good lawyerly response: in writing, of course. Add a policy like this one from the Texas Workforce Commission’s publication, Especially for Texas Employers, to your employee handbook and post it in break rooms and on the employee bulletin board or intranet:

The Company maintains a smoke- and tobacco-free office. No smoking or other use of tobacco products (including, but not limited to, cigarettes, pipes, cigars, snuff, or chewing tobacco) is permitted in any part of the building or in vehicles owned, leased, or rented by the Company. Employees may smoke outside in designated areas during breaks. When smoking or otherwise using tobacco or similar products outside, do not leave cigarette butts or other traces of litter or tobacco use on the ground or anywhere else. No additional breaks beyond those allowed under the Company’s break policy may be taken for the purpose of using tobacco or similar products. Dispose of any litter properly in the receptacles provided for that purpose.

Or if you want a more restrictive policy that bans tobacco everywhere on your premises, here is the TWC’s suggestion:

The Company maintains a smoke- and tobacco-free office. No smoking or other use of tobacco or similar products (including, but not limited to, cigarettes, pipes, cigars, snuff, or chewing tobacco) is permitted at any point during a workday, while on company business, while in transit between work locations or assignments, while at client locations, in any part of a company building or within “x” feet of such buildings, or anywhere on or in company parking areas. There are no designated smoking areas inside or on Company premises, nor does the Company allow smoking breaks during the workday, i.e., no additional breaks beyond those allowed under the Company’s break policy may be taken for the purpose of using tobacco or similar products. If returning from a meal break during which you have used tobacco or similar products, do not leave cigarette butts or other traces of litter or tobacco use on the ground or anywhere else. Dispose of any litter properly in the receptacles provided for that purpose.

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by | December 1, 2008

Preparing for Possible Changes in Employment Laws

The elections are over and it is clear that with the Democrats in charge of the White House and Congress, things are going to change. Whether you celebrate or mourn that fact, if you are a business owner or manager, you need to prepare your business for some of those changes.

There are a number of laws affecting employers that have a good chance of passing after the new government takes office in January. These include:

  • The Employment Nondiscrimination Act, which would amend Title VII to add sexual orientation as a protected class, much like religion, age, national origin, race, disability and gender. President-Elect Obama’s transition team has already added sexual orientation as a protected class in their hiring, along with gender identity.
  • The Fair Pay Act, which will negate a 2007 U.S. Supreme Court decision that substantially crippled the filing of any Equal Pay Act claims by imposing a draconian statute of limitations. The Fair Pay Act would again ensure that women are paid the same rate as a man for performing a job that requires the same skill, effort, responsibility and working conditions.
  • The Healthy Families Act, which will require employers with 15 or more names on the payroll to provide full-time employees with 7 or more days of paid sick leave per year. This would be the first paid leave ever required of employers by the federal government. Obama and Vice-President-Elect Joe Biden cosponsored this bill while they were in the Senate, so passage of this act or a similar one is likely.
  • The Equal Remedies Act and Civil Rights Act, which could remove the current caps on damages in discrimination cases and prohibit the employer from making the employee agree to arbitrate these claims before the dispute arises.
  • The Employee Misclassification Prevention Act, which would raise the penalties for employers who call their employees “contract labor” or “independent contractors” to avoid paying taxes and benefits on their workers.
  • The Occupational Safety and Health Administration is expected begin enforcing ergonomic regulations that were written during the Clinton years. These regulations would affect white-collar workplaces that have seldom had OSHA on their radars at all.

Many other laws affecting employers are expected to be introduced and passed while the Democrats are in power for at least the next two years. That information should light a fire under you to audit your employment practices now to make sure that they are currently compliant and as forward-thinking as possible.

For example, take a look at your pay policies. Are women in your workplace paid less than similarly qualified men? Do you pay anyone on a “contract labor” basis?

Do you shy away from hiring anyone that “seems gay”? Do you fire in haste or anger without clearly documenting all of the nondiscriminatory reasons? Do you rely on an arbitration agreement that you force all of your employees to sign and think that agreement will protect you from a runaway jury?

If you answered any of these questions “yes” or if you suspect any of your other employment practices may be questionable, this is the time to have someone knowledgeable about employment law conduct an audit of your practices and policies to correct the mistakes you are making now and to prepare for the changes to come.

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by | November 17, 2008

Policy Manual Blunders

Like all good employment lawyers, I encourage my clients to have an employee policy manual that outlines, among other things, the company’s expectations regarding employee performance, explaining the available benefits, setting guidelines for using the company technology and prohibiting harassment, violence and drug abuse.

I regularly draft new policy manuals for my clients or review and revise their old manuals. There are several serious blunders I often run across in the employee handbooks I review. If you are a business owner or supervisor, pull out your handbook now, blow the dust off the top of it and crack it open to see if you have made similar mistakes in your manual: Continue reading →

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