All posts by Vicki

Texas Employers Must Comply with Election Laws

Since Election Day is Tuesday, November 6, here are some quick reminders for employers about the Texas election laws that you must follow.

Employers must give all employees a reasonable time off to vote on Tuesday, assuming the employee hasn’t taken advantage of early voting.  So here’s how you apply that law:

  • You can ask if the employee voted early, but you cannot retaliate against an employee for his/her failure to take advantage of early voting. 
  • You need to just accept the employee’s word about whether he/she voted early.

A “reasonable time off to vote” is considered two hours. However, since the lines are predicted to be long on Tuesday, do not discipline any employee who has to wait in line to vote and thereby takes a little longer than two hours away from work. 

The time off to vote should be paid time off if it cuts across the working hours, according to a Texas Attorney General’s opinion. 

It is a crime for an employer to:   Continue reading Texas Employers Must Comply with Election Laws

Four Steps to Protect Your Company’s Secrets When Employees Leave

What can you do to protect your company secrets when Angela, your vice-president of sales, announces she is leaving your company and going to work for your competitor? Is there a way to keep Angela from telling her new employer all about your customers’ preferences, your company’s proprietary pricing, or the new business line you are exploring?

Truthfully, the day Angela announces her resignation is way too late to adequately protect your company’s most important secrets. Your efforts to safeguard your formulas, recipes, passwords, marketing plans, customer lists or other information you would like to keep confidential should have started before Angela was even hired.

There is no time like the present to begin taking at least four concrete actions if you value your business secrets:

  1. Physically protect your confidential information. Remember the urban myths that the secret recipe for KFC chicken or the formula for Coca-Cola were locked in a safe somewhere in company headquarters? According to Fox News, those are actual precautions taken by these companies. “The recipe [for Coca-Cola] lies in a vault in a downtown Atlanta SunTrust Bank vault and only two executives at a time have access to it.” As for KFC: “’Colonel Harlan Sanders’ Original Recipe eleven herbs and spices are inscribed in pencil on a yellowed piece of paper inside a Louisville, Kentucky safe’, says KFC spokesman Rick Maynard. ‘The safe lies inside a state-of-the-art vault that is surrounded by motion detectors, cameras and guards.’” Corporate espionage and theft of trade secrets is big business these days. These two food companies are serious about safeguarding their trade secrets. Are you as careful with yours?
    1. Do you at least have good password procedures, firewalls and cyberthreat protection, files marked “confidential”, inventories of your laptops and other equipment, and limitations on which employees have access to the keys to your business kingdom?
    2. Do you teach your new employees what information is confidential, how to protect it, remind employees frequently about their confidentiality obligations, and take immediate action if there is any breach in confidentiality?
    3. Do you prevent employees from downloading company documents onto flash drives or leaving the premises with your files?
    4. If you don’t take serious measures to protect your trade secrets, you really shouldn’t expect your current or departing employees to care either. Plus, the new Texas Uniform Trade Secrets Act doesn’t even recognize information as a trade secret unless the owner can demonstrate that the business has taken reasonable measures to keep the information secret. So without active measures to protect the secrecy of your proprietary information, you are helpless in the courts when your secrets are stolen.

Continue reading Four Steps to Protect Your Company’s Secrets When Employees Leave

Five Steps for Responding Well to Harassment Claims

Two nooses hanging near a loading dock and racist graffiti on a company truck designed to be seen by the company’s African-American employees will almost certainly lead to an expensive racial harassment lawsuit against a business, but the federal Fifth Circuit Court of Appeals recently sided with an employer who promptly took five comprehensive steps in response to this reprehensible conduct.

In its June 2018 opinion, the Court held that YRC, the employer, responded appropriately to these incidents at its Irving, Texas facility. The opinion gives all employers helpful guidance on how to combat harassment in the workplace. Tolliver v. YRC, Inc. (5th Cir. 2018).

It is important to note that the Court acknowledged that the racist actions were “morally unacceptable” and “reprehensible. But the plaintiffs didn’t allege that the acts were directed specifically toward them and “for the most part, learned about the acts secondhand”. So, the Fifth Circuit did not find that this conduct was sufficiently severe or pervasive enough to change the terms or conditions of employment as to these particular employees, meaning that their personal racial harassment claims weren’t strong to begin with.

But what really mattered to the Court is that the employer took prompt remedial action to protect all employees after these horrifying incidents occurred. The steps YRC followed offer guidance for all employers facing any kind of harassment situation, whether involving racial harassment, sexual harassment, ethnic harassment, etc.

Let’s call these the Five Steps to Responding Well to a Harassment Claim: Continue reading Five Steps for Responding Well to Harassment Claims

Employers Targeted in ICE Raids and Audits

If you think that only illegal aliens need to be concerned about Immigration and Customs Enforcement (“ICE”), then as an employer, you have not been paying attention in 2018, when ICE has clearly put businesses in the crosshairs with compliance audits and enforcement raids.

Take, for example, a raid conducted by ICE in small town Tennessee in April 2018. The Southeastern Provision meatpacking plant reportedly employed at least 104 undocumented immigrants at the time of the surprise raid. The company hired most of these without requiring the employees to complete the required I-9 forms and without making them provide documents showing their identities and authorization to work legally in the United States. To make matters more felonious, these workers were paid in cash each week and not reported on the company’s payroll tax reports.

Last month, the owner of that Southeastern Provision meatpacking plant agreed to a plea bargain in federal court on charges of tax evasion, wire fraud and employing undocumented immigrants. The owner has not been sentenced to prison yet, but he has already agreed to pay at least $1,296,183 to the IRS in restitution.

Similar worksite raids have escalated dramatically under the Trump administration and are happening all over the country. On August 28, a trailer manufacturer located near Paris, Texas, faced one of the largest immigration raids in recent history, when 159 of its approximately 500 employees were arrested by ICE. Because that Texas company, Load Trail, was fined $445,000 four years ago for hiring dozens of undocumented workers, one could reasonably expect the employer to also face jail time and restitution requirements for a pattern and practice of breaking the immigration laws.

How do companies get selected for raids? Continue reading Employers Targeted in ICE Raids and Audits

What Can I Say? Giving References in Texas

Just when you thought you’d heard the last of Fired Felicia, you get a call from Felicia’s prospective employer, who is diligently checking Felicia’s references. What can you as an employer in Texas legally say about Felicia?

Employment lawyers like me have been telling employers for years to remain close-lipped, giving only dates of employment, job title, and last rate of pay. Safe, but almost deceptive in its reticence. We advise this taciturn approach because of our fear that you will say too much and say something defamatory.

Why do I have that fear? Because in a small city like Amarillo, or really anywhere in West Texas, we spend a lot of time on the other end of the reference spectrum. Instead of reticent, we are gleefully chatty.

Hiring managers around here will pick up the phone, ask for their friend who works at Felicia’s last employer, and find out all about Felicia’s problem pregnancy, Felicia’s attitude problem, or Felicia’s suspected but unconfirmed alcohol dependency. That’s when my head explodes as an employment lawyer who is trying to keep the company out of legal hot water.

The rules of references must be one of the most misunderstood areas of human resources. But in Texas, it really shouldn’t be that hard. Here are some simple guidelines: Continue reading What Can I Say? Giving References in Texas

Best Employment Law Training To Be Offered in Amarillo

One of the best employment law training opportunities for managers, human resources personnel and business owners of your company is happening in Amarillo on September 21, 2018.

The Texas Workforce Commission only offers its Texas Business Conference in Amarillo every few years and I recommend it to my clients as a “not to be missed” event. The cost is only $125 per person and just the written materials you will receive at the one-day conference are worth that.

The TWC’s speakers will cover the following in detail:

  • Wage and Hour Law (which is arguably the most violated business law in the country);
  • Independent Contractors;
  • Policies and Handbooks;
  • Worker’s Compensation: How to Control Costs of an On the Job Injury;
  • Hiring/Employment Law Update; and
  • Unemployment Claims and Appeals.

The great news is that the conference will help you no matter whether you are new to human resources issues or have been dealing with them forever.  I’ve been practicing employment law for 30 years, yet I learn something new every time I attend this conference.

If you would like to sign up for this training event, you can find more information and registration here. I hope I see you there on September 21.

Employee Handbook Policies You Can and Cannot Legally Include

For the last several years, the National Labor Relations Board has been regulating which policies your employee handbook can and cannot include, even in your non-unionized workplace. At one point in 2015, there were dozens of handbook policies that were considered to have a chilling effect on an employee’s freedom to organize through “concerted activity”. Those policies were ruled to violate the National Labor Relations Act and as an employment lawyer, when I encountered them in a client’s employment policy manual, I either removed them or added a disclaimer stating that the policies weren’t intended to apply to acts protected by the NLRA.

Three years have passed and several court opinions have frowned on the NLRB’s formerly expansive disapproval regarding employee policies. In addition, the political leanings at the NLRB have shifted. Therefore, a distinctive change has recently occurred in the NLRB’s approach as to which employee policies an employer can enforce and which ones an employer can’t.

In a general counsel’s memo dated June 6, 2018, the NLRB instructed its staff that the following policies are okay to include in an employer’s policy manual and won’t necessarily be treated as an unfair labor practice:

  • Civility rules that require employees to avoid disparaging coworkers and using offensive, rude or condescending language to a coworker or customer;
  • Rules requiring that proprietary information and trade secrets of the employer and confidential information of customers have to be protected by employees (however, just saying everything the employee learns at work is confidential is too broad);
  • Rules prohibiting employees from aiding the competition, self-dealing and nepotism;
  • Rules against insubordination or non-cooperation that affects company operations (usually described as refusal to comply with a supervisor’s orders and/or perform work);
  • Rules prohibiting employees making intentionally dishonest statements or misrepresentations;
  • Rules prohibiting disruptive behaviors, such as “fighting, roughhousing, horseplay, tomfoolery, and other shenanigans.” Also included on the naughty list: “yelling, profanity, hostile or angry tones, throwing things, slamming doors, waving arms or fists, verbal abuse, destruction of property, threats, or outright violence.”
  • Rules prohibiting photography or recording in most business settings. “Employers have a legitimate and substantial interest in limiting recording and photography on their property. This interest may involve security concerns, protection of property, protection of proprietary, confidential, and customer information, avoiding legal liability, and maintaining the integrity of operations,” said the 2018 NLRB General Counsel. So, on balance, the NLRB has decided that it is okay for your policy to tell your employees “no photography, no recording”.

But that doesn’t mean that every rule in your employee handbook is acceptable. You still have to consider if your written policy is infringing on your employees’ rights to participate in protected concerted activity—the joining together of employees to discuss or protest the terms and conditions of their employment. If so, by enforcing that policy, you may be committing an unfair labor practice and you can be investigated and penalized by the NRLB.

Here are five policies that your employee policy manual that are still problematic and could get your company into trouble: Continue reading Employee Handbook Policies You Can and Cannot Legally Include

“Hire American” Doesn’t Justify Employing Only Citizens

As an employer, you have to verify the work eligibility of every employee, and that frustrating process might make you consider hiring only U.S. citizens. Please reconsider.

The form for verification, the I-9 form, is confusing and some of the documents you are presented may not look familiar to you—permanent residence cards, foreign passports, employment authorization documents, tribal documents. So, you may find completion of the required I-9 form stressful, especially since you have to swear under oath on the I-9 itself that the documents the employee presented and you examined appear to be genuine and the person is authorized to work in the U.S. to the best of your knowledge.

It is tempting to consider just making a blanket rule that you will only hire U.S. citizens. Then, you would only need to look at a driver’s license and social security card. Additionally, President Trump signed an executive order last year requiring “Buy American, Hire American” (notwithstanding the fact that he uses foreign guest workers as servers, housekeepers and cooks at his properties like Mar-A-Lago). So, wouldn’t you just be doing your patriotic duty by hiring only American-born workers at your company?

No.

There are both longstanding legal and historical reasons that “Hire American” should only be treated as a slogan and not an employment policy.

The same Immigration Reform and Control Act (“IRCA”) that introduced the I-9 form to American employers in 1986 also codified that employers with four or more employees are prohibited from discriminating on the basis of citizenship status, which occurs when adverse employment decisions are made based upon an individual’s real or perceived citizenship in the U.S. (or lack of citizenship) or an applicant’s legal immigration status.

The IRCA antidiscrimination provisions also prohibit small employers (e.g., those with four to fourteen employees) from committing national origin discrimination against any U.S. citizen or individual with employment authorization. Employers with 15 or more workers were already prohibited from considering national origin in employment decisions by Title VII of the Civil Rights Act of 1964. Any employer who only hires applicants born in the United States discriminates against all other national origins.

Therefore, any employer who takes into account an applicant’s country of birth or citizenship status when making hiring decisions violates federal law. Your only interest in someone’s citizenship or immigration status should be finding out within the first three days of work whether your new employee is eligible to work in the United States, no matter where that employee is from or whether he or she is a visa-holder, born elsewhere but now a green-card holder, or a citizen, naturalized or native-born.

But it isn’t only for legal reasons that you should never discriminate against legal immigrants in your workplace. Hiring legal immigrants also strengthens our democracy.

It is  important to understand the historical context of denying a legal immigrant the chance to work in America, which is supposed to be the Land of Opportunity. Our history is full of times when we excluded groups of immigrants in ways that now seems nonsensical.

For example, in the 1840’s and 1850’s, Irish immigrants fleeing a deathly famine and British oppression arrived on the East Coast in “coffin ships” (so called because almost 25% of the passengers who started the journey died during the passage). All of the lucky ones who survived to reach the United States were hungry, many were unskilled (often farmers who were initially unsuited to work in urban areas), and almost every one of them was Catholic. This was at a time when some Protestant conspiracy theorists fanned the flames of fear that the pope and his army would land in the United States, overthrow the government, establish a new Vatican in Cincinnati (of all places), and impose the Catholic canon as the law of the land.

(Forgive me if you already know all of this, but it appears to me that, 170 years later, the mistakes of our history are being forgotten and, therefore, will be inevitably repeated).

In cities like Boston, it was hard to assimilate such large numbers of immigrants and some employers decided it was easier just to exclude Irish workers from employment completely. “No Irish Need Apply” was a sign common in Boston storefronts at that time.

National origin and religious prejudice ran high across the country, and bigoted groups formed, such as the Know-Nothing party who believed that Protestantism defined American values and Irish Catholics had no place in America (regardless of the First Amendment’s protection of freedom of religion).

Fortunately, America also had its better angels. Abraham Lincoln was among the many Americans disturbed at the rise of this bigotry, as he explained in an 1855 letter to a friend: Continue reading “Hire American” Doesn’t Justify Employing Only Citizens

Five Tips for Hiring Teenagers

Summer is coming, and you may be thinking about employing some teenagers. Here’s some lawyerly advice: proceed with caution. Employing teens requires you as an employer to foresee potential problems and correct them very early.

Here are five tips for hiring teens:

1. Safety: You have to be much more safety-conscious when you employ teens. In 2014, workers ages 15-19 had more than twice as many injuries that sent them to the emergency room than employees over age 25.

Your company has a legal duty, according to OSHA, to provide a safe working environment for all employees, which means you need to engage in extensive safety training with new teen employees. Cover the most common workplace hazards and injuries such as slips, trips and falls, chemical exposure, burns and cuts, eye injuries, machinery malfunctions, and strains and sprains, as well as any known hazards specific to your workplace.

Remember that teenagers are often uncomfortable acknowledging their ignorance or inexperience, so they may not ask questions that would indicate that they don’t clearly comprehend your training or instructions. They also may not learn without extensive repetition of the rules. Don’t assume that stating a safety rule one time is going to sufficiently train a teen worker.

2. Sexual Harassment: Many recent Equal Employment Opportunity Commission enforcement actions have shown that teenagers are very vulnerable when it comes to sexual harassment. They need as much if not more training than your more mature employees in how to recognize, prevent and report harassment, even if the job is not considered long term for that teen. Continue reading Five Tips for Hiring Teenagers

10 Facts Texas Employers Should Know About Unemployment

Do I have to pay unemployment on my employee who just quit/resigned/got fired/was laid off?

During most of my thirty years as an employment lawyer, I have been asked that question at least once a week. Here are ten basic facts that every employer in Texas needs to understand about our state’s unemployment system: Continue reading 10 Facts Texas Employers Should Know About Unemployment