All posts by Vicki

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

Transgender Woman Protected From Sex Discrimination, Court Decides

The U.S. Sixth Circuit Court of Appeals ruled last month that Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against a transgender woman “on the basis of sex” and also ruled that the supervisor’s belief that gender transition “violates God’s commands” is not a defense to employment discrimination.

The Sixth Circuit, which decides federal cases brought in Kentucky, Tennessee, Michigan and Ohio, reviewed the firing of Aimee Stephens from her job at a funeral home in which she had originally worked as a male in the case of EEOC v. R.G & G.R. Harris Funeral Homes (U.S. 2018)

After she was diagnosed with gender identity disorder, Stephens told her boss, Thomas Rost, that she was planning to transition to female. Her boss fired her. Rost stated during the lawsuit that he terminated Stephens’s employment because “he was no longer going to represent himself as a man” and that a person’s sex is “an immutable God-given fit”.

The Sixth Circuit decided, like the Second and Seventh Circuits (covering New York, Vermont, Connecticut and Illinois, Indiana and Wisconsin, respectively) before it, that a company violates an employee’s civil rights if the employer fires that worker on the basis of sex, including sexual orientation and gender identity.

The funeral home where Stephens worked hoped that its termination of her would be protected by the Religious Freedom Restoration Act and the U.S. Supreme Court’s case of Burwell v. Hobby Lobby (U.S. 2014).

However, almost three decades ago. the U.S. Supreme Court had already rejected the argument that a supervisor’s religious squeamishness was sufficient to overcome the civil rights laws. The United States Supreme Court ruled in Employment Division v. Smith (U.S. 1990) that a person may not defy neutral laws of general applicability even as an expression of religious belief. “To permit this,” wrote conservative Justice Antonin Scalia, “would make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

Despite this long-standing Supreme Court precedent, the funeral home argued that the presence of a transgender employee would require Rost to leave his job, because forcing him to work with a transgender person was an infringement of his religious rights and also would “often create distractions for the deceased’s loved ones”. Continue reading Transgender Woman Protected From Sex Discrimination, Court Decides

Hook Ups and Break Ups in the Workplace

More than one-third of American employees have dated a coworker, according to Harris Polls’ latest annual survey for Career Builder, so as an employer, you are going to be inevitably faced with the problems that coworker hook ups and break ups can cause in your workplace.

In the beginning of a workplace romance, it is important for employers to find out about the relationship and set the ground rules before things get messy. You can adopt a written policy that requires employees to notify the company when they “start dating”, although defining that is pretty difficult. Nowadays, does “dating’ mean they’ve had the first date, the second hook up, or just that one of them has changed his or her relationship status on Facebook?

Some employees are not going to readily tell you that a relationship has started. The Career Builder survey shows that 25% of the relationships at work involved a married coworker. So those people will probably stay quiet. However, the study also showed that 37% of employees thought they had to keep their office romance a secret at work.

As the employer, you can’t stay in the dark, so you need to assure your employees that you have to know and that you will work with them to help everyone adjust to the new coworker relationship.

Once you know about the new couple, you have to communicate your expectations to them. You can do this by written policy, a specific “love contract” that the new couple signs, or by verbal coaching, although something in writing is always preferred by your employment lawyer.

You have to address the end of the relationship in the beginning. While about 31% of workplace romances lead to marriage, the Career Builder survey says, that leaves 69% that result in a break up and the bitterness that a soured romance can cause in your workplace. Break ups can even cause good employees to leave your company (6% leave, according to that study).

Anticipating that greater than two-thirds of the dating relationships between your employees will eventually end, what are the necessary ground rules of hook ups and break ups that an employer should impose? Continue reading Hook Ups and Break Ups in the Workplace

Written Policies to Protect Your Business During the Opioids Epidemic

With the current opioids epidemic raging across America, including in the Panhandle of Texas, employers are asking me if they can drug test current employees for prescription medications such as hydrocodone. Can a Texas employer try to prevent a workplace accident or death by testing when opiate use is suspected, or do you just have to hope that employee won’t hurt someone?

You have to consider the Americans with Disabilities Act when deciding if you are going to drug test your employees and how you should react to a positive test. The ADA protects an employee’s rights to lawfully take over-the-counter and prescription drugs to treat a disability.

However, the ADA doesn’t protect current substance abusers. So, since abuse of prescription drugs isn’t protected, how an opiate was obtained, how it is being taken, and if the employee is too impaired to work safely become crucial questions if your employee appears impaired.

Usually, I get a call from an employer about drug testing when an employee is falling asleep on the job, is slurring words, seems disoriented, has difficulty performing routine tasks, and/or is excessively absent, belligerent or erratic. At that point, drug testing may be appropriate, but I have to ask if the employer has laid the groundwork to do the drug testing and to respond appropriately to a positive test.

As with most employment law issues, you have to protect your business with well-written policies long before you are faced with an employee who appears to be high on Vicodin. Continue reading Written Policies to Protect Your Business During the Opioids Epidemic

Sexual Harassment Focus Should Prompt Employer Vigilance

To no one’s surprise, my life as an employment lawyer for the last two months has focused primarily on one issue—sexual harassment. I have conducted several investigations and advised numerous employers on this issue recently because the national news and the #MeToo movement have had a direct impact on employers in the Texas Panhandle area, including some of my smaller employers.

Female employees nationwide and locally obviously feel freshly empowered to say something about any mistreatment and to expect that their complaints will be seriously addressed. As Oprah Winfrey predicted at the Golden Globes awards ceremony, “For too long, women have not been heard or believed if they dare speak the truth to the power of those men. But their time is up. Their time is up.”

While the recent sexual harassment focus is inspiring to many women as a political call to arms, business owners and human resources directors are trying figure out how to hear and handle the resulting complaints with compassion, but also with practicality. That’s where your employment lawyer can help.

Any claim of sexual harassment is what we employment lawyers consider an emergency for your company. When an employee alerts you to a problem, you have to spring into action immediately to make the complainant safe, undertake a thorough and impartial investigation of the claim and finally, resolve the matter with the appropriate discipline. At that point, it is too late to improve upon your written policy or regret a bawdy joke that you recently told.

If you are a business owner or manager in a company with at least 15 names on the payroll, you would be wise to expect to face a sexual harassment complaint sometime in the near future, and to take these six steps now to lessen the sting of such a complaint: Continue reading Sexual Harassment Focus Should Prompt Employer Vigilance

My Christmas Wishes for Employers

It is that time of year when we are singing, “We wish you a Merry Christmas”. As an employment lawyer with 30 years of experience, I have some idea of what you as a business owner or manager are wishing this Christmas.

I know you work hard as a supervisor. Managing people every day isn’t an easy job, particularly if your employees do not have a willing attitude to try to be a good employee.

I hear from employers every day about the frustrations that you face as an employer. The average person who supervises employees spends at least 20% of her time just dealing with employee mistakes, complaints, emotions, negligence, etc., on top of trying to do all of her regular work.

So, for this Christmas, I have made a list of what I wish for you as a supervisor in terms of employees.

  • Employees who realize that the purpose of a business is to make a profit, and that requires that the employee actually be present to perform the work assigned. I recently had a matter involving an employee who was tardy repeatedly for things like a flat tire, a loose dog and “I forgot to set my alarm”, so that client meetings had to be cancelled and business was lost. I wish for you as a supervisor the employment of people who realize that these little issues chip away at a business’s profitability. Even a small company should provide a generous amount of vacation time, sick leave and holiday pay. But once an employee has used up his allotted paid time off, he needs to think seriously about getting back to work and being productive for you or the business may not be there to provide his paid vacation the next year.
  • Employees who can be trusted with the success of your business, as well as the company’s time, money, and equipment. Every year I see a number of business owners in the Panhandle lose significant amounts of money to employee embezzlement, lose equipment to employee negligence and lose profitability to employee laziness. Granted, the employer needs to have reasonable checks and balances in place to try to prevent these losses. But wouldn’t it be nice if all of your employees were the kind of people who had enough integrity to forego theft, enough caution to treat your property as theirs, and enough loyalty to go above and beyond the bare minimum effort.
  • Sober employees. Most business now drug-test when an employee is hired. This has resulted in a drop nationwide in pre-hire positive drug tests. But I still see injuries and damage done by substance-abusing employees after they have worked for the business for a while. My wish is that you don’t have to deal with those issues. You can help make my wish come true by actually requiring the occasional random drug and alcohol testing in your workplace, as well as testing immediately after any personal injury or property damage occurs at work that might have been caused by an impaired employee.
  • Employees who exercise verbal discretion. Employees who gossip, spread rumors, complain, speculate and backstab in an effort to make themselves look better simply don’t realize that respect is given to those who keep their negativity and rumor-mongering to themselves. It would be great if Santa could bring each of your employees the gift of discretion this year. As someone wise said, “Discretion is the ability to raise your eyebrow instead of your voice.”
  • Employees who appreciate feedback and even criticism because it makes them better at their job. I have often thought that the clearest sign of maturity in an employee is his ability to accept constructive criticism, or even better, to ask for it. So, I wish for you employees who know that wisdom comes from humility and accountability. You deserve those employees who are not afraid to find out if they made a mistake and to ask you the best course to avoid such mistakes in the future.
  • Employees who take pride in their work regardless of who gets the credit. “My grandfather once told me that there were two kinds of people: those who do the work and those who take the credit. He told me to try to be in the first group; there was much less competition.” – Indira Ghandi. Enough said.

Such employees sound like a dream, like a Christmas wish, don’t they? But you probably know that the best way to cultivate such employees is to lead from the top down. You must be the type of leader whose character, work ethic, sobriety, discretion and integrity are unquestionable if that is the type employee you want to employ.

As I have said before in my blog posts: “You will get the employees you deserve if you are quick-tempered, unfair, dishonest, prejudiced, undependable, selfish or disloyal to your employees. Your values, good or bad, will set the standard for everyone you supervise.”

 

         

Holiday Party Precautions

The holiday season is upon us and as employers, many of you will celebrate in that great American tradition: you will throw a big Christmas party for your employees, serve them alcohol and then turn them loose on an unsuspecting public.

Consider what could happen while the booze is freely flowing at your company holiday celebration: the alcohol emboldens a potential sexual harasser and he becomes an actual harasser of one of your staff, or a conflict between employees is fueled by alcohol and an actual physical confrontation erupt.

Another likely scenario is that your inebriated assistant gets into a car after you bought drinks at the holiday happy hour and runs down a pedestrian.

Whether the pedestrian could win a lawsuit is debatable. Back in 1987, the Texas Supreme Court said, “The risk and likelihood of injury from serving alcohol to an intoxicated person whom the licensee knows will probably drive a car is as readily foreseen as injury resulting from setting loose a live rattlesnake in a shopping mall.”

The general rule in Texas is, however, that a social host doesn’t incur liability for serving alcohol to a guest.  However, a plaintiffs’ lawyer would be happy to create new case law with a suit against an employer for encouraging an employee to get drunk at a company function and then taking no steps to protect the public from that employee on the way home.

You don’t want to be the one to provide the courts with the test case to see if an employer is responsible for its intoxicated employees. Even if you win at trial, you will lose the tens of thousands of dollars it costs to have an attorney defend the suit, you will waste valuable production time while in depositions or trial, and you and your employees will suffer a demoralizing emotional blow.

You also should be concerned about the effect that hosting a big drunken blow out will have on your ability to enforce your drug and alcohol policies at the office. This kind of inconsistency does not engender respect for you in your employees.

For the same reason, as the boss, you should watch your own drinking and behavior at any company function.

Your best decision is to honor your employees during the holidays with a party that is nonalcoholic. If you choose to serve alcohol, take a few reasonable precautions: Continue reading Holiday Party Precautions

“If True”: How to Assess Credibility in Sexual Harassment Investigations

“If these allegations are true” has been the most hotly debated qualifier used by politicians recently in reaction to all of the sexual misconduct accusations in the news.

While many politicians use the phrase out of cowardice to avoid taking an actual stand on an important issue, there is an underlying point: it is a necessity to determine credibility when someone has been accused of sexual misconduct.

Having conducted sexual harassment investigations many times during the last 25 years, I’ve often been required to determine if a victim is telling the truth or whether the accused is believable. Juries have to do the same thing.

Even if the case never goes to trial, employers have to make decisions about the right steps to take when a man (and yes, it is almost always a man) is accused of being sexually inappropriate in the workplace. The company looks to me for guidance on that decision if I am conducting the investigation or if I’m defending the employer when a claim of sexual harassment has been brought.

The first step in determining “if true” is to believe the accuser. I know that irks some people, but I have experienced too many situations where the boss’s first reaction is to tell the victim, “Don’t worry about him, Honey. That’s just the way he is. It doesn’t mean anything.”

That is an actual quote from a sexual harassment case that I handled, but I have heard variations of that speech dozens of times in my legal career. If that is the employer’s attitude, the company has already made a credibility determination without investigation—the woman is unworthy of being taken seriously after she got up the courage to complain.

Remember that believing the victim is only the first step in the process, not the end of it. That step should be followed by a prompt, fair and thorough investigation conducted by someone who does not have a horse in the race.

A sexual harassment investigation should involve interviewing the victim, any witnesses and the accused, and also reviewing documents, policies and other proof, which usually includes pictures, emails, texts, phone records, internet searches, calendars, greeting cards, and recordings.

When I am doing an investigation, I have to make a judgment about whether each witness is believable. So, my questions don’t just center on the alleged events, but also on motivations, timing, relationships and track records.

Here’s what I look at in determining whether the person I am talking to is believable: Continue reading “If True”: How to Assess Credibility in Sexual Harassment Investigations

No Peeking! Social Media in Hiring

Can the company recruiter review an applicant’s personal social media accounts before making a hiring decision? Yes, in Texas, an employer may look at any public postings, but there are enough legal risks that I would discourage you as an employer from peeking.

Why shouldn’t an employer take advantage of the wealth of information that may be available on an applicant’s Facebook page, even if the employer hasn’t “friended” the applicant? Because much of the information you could discover on an applicant’s social media is not job-related, and therefore becomes the basis for a discrimination claim.

Because many people are careless about the privacy controls on their social media profiles, you may find out that your applicant has a disability that was not obvious during the interview, but comes more clearly into view when you read the “I’m praying for you” messages on the applicant’s Facebook page. Are you going to violate the Americans with Disabilities Act by failing to hire the applicant now that you know this information?

You may discover that the applicant is pregnant when you see that she announced the exciting news on Twitter. “But I want to know if she is pregnant, so I don’t lose her for twelve weeks next year,” you will tell me.

In response, I’ll refer you to the recent case of United States Equal Employment Opportunity Commission, et al. v. Brown & Brown of Florida, Inc., in which an applicant was offered a $13.50 per hour job with an insurance brokerage that she joyfully accepted. She told her old employer she was leaving. She followed up with the new employer and asked about the company’s maternity policy, revealing that she was pregnant. Her job offer was revoked by the brokerage that same afternoon. That revocation decision cost the brokerage $100,000 because it violated the Pregnancy Discrimination Act.

So, do you really want to know what you may find out on social media? Three-quarters of all Human Resources professionals surveyed in 2013 by the Society for Human Resource Management said that they do not screen personal social media accounts because they fear what they will find. I advise my employer clients to exercise the same restraint.

But if you insist on peeking:

  • Screen all or none. Your electronic screening history will be subpoenaed in any discrimination claim and it will be apparent if you only screened women, for example, to see if they have young kids that might affect their attendance.
  • Don’t ask for the applicant’s passwords to their social media accounts. Many states have passed laws banning this practice and any jury that hears that you made that request will hate your guts.
  • Getting a third party to screen for you requires that you follow all of the complex requirements of the Fair Credit Reporting Act (prescreening notice, summary of rights, pre-adverse action notice, time to correct the record, post-adverse action notice).
  • Be careful what action you take once you have screened. If you determine that the applicant is transgender, Muslim, disabled or pregnant based on her FB page, are you going to risk a discrimination lawsuit by not hiring her? This is when you need to get your employment lawyer involved.
  • What if you see posts or pictures that cause you to believe that an applicant could be a threat to other employees? If you hire him anyway, you can be sued for negligent hiring if he ever becomes violent at work.
  • If you see a post reflecting union activity or protected concerted activities (discussing wages or terms and conditions of employment, such as complaining with a coworker at a former job), any adverse action you take involving that applicant could violate the National Labor Relations Act.

I don’t include LinkedIn when I am advising employers to stay away from an applicant’s social media pages. LinkedIn and similar industry sites are commonly used for business and not social purposes. Applicants are generally much more discrete about what they post on their LinkedIn pages.

In addition, posting company job openings on social media and using a service like LinkedIn to attract passive and active job applicants is common now and doesn’t run the same risks as peeking at an applicant’s personal social media pages.