All posts by Vicki

Taking Care of Your Employees After A Natural Disaster

Employers along the Texas Gulf Coast are trying to determine how best to help their employees in the emergency that is the aftermath of Hurricane Harvey. As business owners and managers, we have the responsibility to try to take care of our most important business resources–our human resources–in the face of catastrophe.

While lots of websites and plans are in place telling a business about stocking emergency supplies, sheltering in place and creating evacuation plans, there are fewer guides for what to do for your employees in the long days and weeks afterwards.

After any natural disaster, whether it is a hurricane on the Texas Coast or a tornado or blizzard in the Texas Panhandle, you are going to first need to check on the well-being of your employees. For that reason, you need to keep updated phone records and emergency contact information for your employees in a safe place, preferably electronically so that you can access it from any location.

Organize a group text, a telephone tree or a call-in phone number so you can determine where each employee is, if each employee is physically okay, and whether the employee will be able to report to work. Don’t assume that just because you can get the business open that you will have employees to work in it.

Then you need to worry about money, because your employees certainly are worrying about it. According to a large survey in 2016 by GoBankingRates.com, half of all Americans have less than $1000 in their savings account. Even more sadly, 34% had no savings at all.

In addition, 60% of workers in America are paid by the hour and federal law only requires employers to pay an employee for hours actually worked. So being away from work even for a day or two can have devastating financial consequences for many employees.

Some will brave any conditions to make sure they don’t risk losing a day of pay or losing their job. The New York Times illustrated this in a story about the first day after Houston started getting the four feet of rain that Hurricane Harvey eventually dropped on that city.

Gloria Maria Quintanilla appeared as a speck on the horizon, wading through waist-high waters in the middle of the road with a sack thrust over one shoulder and an umbrella perched on the other. Ms. Quintanilla, 60, seemed to epitomize Houston’s work ethic, its resolve and its shock.

“I worked at the hotel up there,” she said when a reporter approached. As she walked, she explained that she was an immigrant from El Salvador, here since 1982. She makes $10 an hour washing and ironing sheets and towels at the Doubletree.

She had started the journey from home more than an hour before.

“It was my day to work, and I’m a very responsible person,” she said, speaking in Spanish. “I had no idea it was going to be like this.”

The large majority of your hourly employees need to work, want to work and want to fairly earn their pay. However, when their homes are underwater or destroyed in a tornado, they may need extra help. Even if you don’t normally provide salary advances or employee loans, in times of natural disasters, you may need to bend the rules and allow those.

Continue reading Taking Care of Your Employees After A Natural Disaster

Preventing Racism and Incivility in Your Workplace

As a business owner or manager, you have the opportunity and the responsibility to combat racism and hatred in your workplace. Despite the bitterness of current political discourse and the appalling display of racism in Charlottesville, Virginia last weekend, or maybe because of it, everyone deserves to be able to go to work and feel accepted, valued and safe.

From a legal perspective, the Civil Rights Act of 1964 and the discrimination statutes of every state prohibit racism. Racist expressions in the workplace can lead to discrimination cases that are costly, both in terms of money and company goodwill. For example, a Dallas milling company settled with the EEOC in 2012 for $500,000 after 14 African-American employees alleged that their supervisors did nothing when the complainants faced racist graffiti and slurs by co-workers, including “KKK”, swastikas, Confederate flags, and “die, n—-r, die” as well as nooses displayed in the workplace.

This kind of discrimination can hijack the future of a company. Why would anybody with a conscience choose to work there ever again? Or do business with such a company once these actions were known? No amount of wise counsel from an employment lawyer like me can really defend, much less restore a company’s prosperity after these sorts of egregious actions are allowed to occur.

Employers trying to avoid discrimination lawsuits and to build a culture of decency can put into place anti-discrimination policies and training, can immediately investigate and take remedial action when racism is suspected or discovered, and can make advancement and better pay at the company dependent on an employee’s or manager’s embracing of equality.

But perhaps the most important way you can prevent discrimination at your company is by setting an example of what you expect from your employees. You are the yardstick by which your company is measured.

Christine Porath, a leading authority on decency in the workplace, says in her book that 25% of employees acknowledge that they acted uncivilly in the workplace because they saw their bosses acting that way.  As the boss, you need to have zero tolerance for incivility because it is like a gateway drug—incivility often becomes prejudice, harassment and discrimination. Getting away with one often leads to the others.

As a business owner or supervisor, you set the tone for your employees. Your words and actions determine if the workplace is respectful or hostile. You must tell your workers that bigotry is unacceptable and that you have a zero tolerance for stereotyping, name-calling, racial slurs, bullying and other abusive behaviors.

But more importantly, you personally must show your employees, not only by avoiding participating in these kinds of abuses, but also by making a special effort to “be the behavior you want to see” in your employees—respectful of all people, patient, empathetic, humble, transparent, honest and self-controlled.

Ending racism in the workplace is not just your legal responsibility—it is a moral one. Continue reading Preventing Racism and Incivility in Your Workplace

Running Off an Underperforming Employee Is Not a Viable Option

In my long experience as an employment law attorney, I have come to realize that employers really, REALLY hate to fire employees. Some employers are scared of confrontation, others hate admitting they made a bad hire, and some just can’t find the right words.

Whatever the reason for being unable to fire a poor performer, employers often ask me about “running off the employee”. Running off an employee usually means making the employee so miserable the employee will voluntarily quit.

The employer trying to run off an employee may give the employee the worst duties at the company, criticize the employee in front of others, deny the employee’s vacation request, cut the employee’s pay, transfer the supervision of the employee to the worst supervisor, or make the employee work the graveyard shift.

Of course, this approach to termination often also makes the employee so angry that when the employee leaves, he or she becomes much more likely to sue the employer.

Running off an employee is the layman’s way of doing what we in the legal field call a “constructive termination”. A constructive termination occurs when the employer makes the working conditions so intolerable that any reasonable employee would feel forced to resign.

When an employee quits with good cause because the employer made continuing to work there intolerable, there are numerous legal consequences, such as: Continue reading Running Off an Underperforming Employee Is Not a Viable Option

Workplaces Must Accommodate A Nursing Mother

A nursing mother in your workplace has certain employment rights that you as an employer must understand. Until the time that the child is one year old, Texas employers must provide the time and space for the mother to breastfeed the baby (if children are allowed at the workplace) or to express milk to be stored for later.

The federal compensation law, the Fair Labor Standards Act (“FLSA”), was amended in 2010 to require employers to provide nursing mothers with “reasonable” break time to pump breast milk. Employers must realize that there is no one definition of what is “reasonable” that applies to every new mother.

The Department of Labor says in its Fact Sheet #73 regarding Break Time for Nursing Mothers, “employers are required to provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother. The frequency of breaks needed to express milk, as well as the duration of each break, will likely vary.” Speaking from experience, nursing may take 10 minutes, 25 minutes, 40 minutes or even longer and isn’t standardized from mom to mom, day to day, or break to break.

If you provide coffee breaks or meal breaks during the day to other employees and pay them during that break (which the FLSA requires you to do if the break is less than 20 minutes), then you should allow your nursing mothers to use those breaks if convenient and be paid during those breaks just like any other employee.

Otherwise, nursing breaks do not have to be compensated, so you can require a nonexempt (hourly) employee to clock out during the break so that the nursing break isn’t paid. If that means that the employee has to stay longer each day to actually perform work for 40 hours per week, you as an employee can require that extra time. Or you can choose to pay the employee for only the hours worked, which may be less than 40 when lots of nursing breaks are taken.

The easiest way to address compensation is to have a written policy that states that all nursing breaks of 20 minutes or less are paid, but longer breaks are unpaid.

You also have a responsibility as an employer to provide a place for the nursing mother to breastfeed or express milk. That place cannot be a bathroom. The area must be private with a lock on the door or another way to assure that the public and/or coworkers won’t barge in while the employee is nursing or pumping. If you have more than one nursing mother employed at a time, it is common practice to have a sign up or reservation-type system for the room you designate for expressing milk.

The secluded place the employer provides must be functional for expressing milk, meaning it should at least be furnished with a comfortable chair. Many employers provide a small dorm-sized refrigerator and a Sharpee in the nursing area so that the expressed milk can be labelled and dated and kept cool until the new mother can take it home.

Texas allows employers who adopt a new mother-friendly written policy to advertise that it is a “mother-friendly” business. If that “carrot” approach doesn’t convince you, then the “stick” is that failure to provide adequate breaks and a secure place for nursing mothers means that not only will your business be violating the FLSA, but also the employee can bring a sex discrimination or sexual harassment action if you have at least 15 employees.

A federal court has also ruled that breastfeeding is a medical condition related to pregnancy and maternity, so you can also be sued under the Pregnancy Discrimination Act. You must additionally prevent an employee from being retaliated against for exercising her rights as a nursing mother, i.e., you must assure that her supervisor doesn’t give her a poor evaluation or demote her because her nursing rights create some disruption in the office.

Small employers (less than 50) have one defense to these kinds of claims. Continue reading Workplaces Must Accommodate A Nursing Mother

Why Drug Test Your Current Employees?

As an employer, you should be committed to a drug-free and alcohol-free work environment that protects both your employees, your customers and the general public.

Drug testing your employees is an important component of that safety commitment. However, while many employers test before hiring an applicant, nearly two-thirds of employers never conduct a drug or alcohol test on current employees, according to a Society for Human Resources study in 2011.

When employers do test current employees for drugs, employees test positive about 4.2% of the time, according to the latest numbers from the annual Quest Diagnostics Drug Testing Index. That number is creeping up and is at its highest level since 2004.

Even if you are a small employer with only 25 employees, that still means that one of your current employees could test positive for drugs right now. What if that one person is the delivery driver, the heavy machinery operator, the EMT, the security guard or any other safety sensitive employee working for you? Are you willing to take a chance with the safety of your other employees and your customers?

That only 4.2% of employees test positive for drugs or alcohol is actually a little low considering how many people are actually addicted to those substances. The National Survey on Drug Use and Health in 2016 estimated that 8% of all Texans have a substance abuse disorder, with three-quarters of those Texans addicted to alcohol. The rest are hooked on marijuana, meth, heroin, cocaine and prescription opioids, in that order.

As a Texas employer, you don’t have to allow employees to be impaired at work. Continue reading Why Drug Test Your Current Employees?

Key to Good Hiring: Good Interviews

In these times of low unemployment, don’t you as an employer want to know the key to good hiring? After all, a bad hire means that recruiting dollars are wasted, projects remain incomplete and you may even lose customers or good employees who are tired of dealing with the subpar employee.

In an ideal workplace, each new hire performs the job duties well, fits into the culture, contributes new ideas and energy, forms close professional relationships with coworkers and increases the efficiency and effectiveness of the organization.

But how do you achieve that ideal? You have to know the key–good hiring requires good interviewing.

Okay, that should have been obvious. But in my 25+ years of experience in the world of employment, I’ve seen more poor interviews than good ones. See if any of these questions sound familiar:

  • How did you hear about this job?
  • Tell me about yourself.
  • How do you know so and so?
  • Do you know how to use a computer?
  • Do you like to work in a fast-paced (or casual, or family-oriented, etc.) environment?
  • Insert any other close-ended question that provides zero information here.

Open-ended questions that are too general like “tell me about yourself” will only inform you of whatever the applicant wants you to know. Close-ended questions that require just a “yes” or “no” answer provide you with no useful information.

We often treat interviews like we are trying to make small talk at a cocktail party. And we often have similar awkward results. So how do you interview well? Continue reading Key to Good Hiring: Good Interviews

Hiring Older Applicants Protects Against Age Discrimination Claims

As older applicants know, getting a new job when you are over 50 years old is difficult and the reason often involves age discrimination. Employers like to recruit youthful employees, but they overlook the expertise and loyalty that older workers offer. Graying workers are fighting back in the form of age discrimination suits, so employers would be wise to reevaluate their aggressive pursuit of young workers.

Texas Roadhouse, the restaurant chain, recently agreed to a $12 million settlement in an age bias suit brought by the Equal Employment Opportunity Commission alleging that Texas Roadhouse overlooked older applicants for server, bartender and host positions. The restaurant denied any wrongdoing, but after spending years in litigation and countless dollars on attorneys’ fees, Texas Roadhouse agreed to ensure that older applicants are considered consistently alongside younger ones. Silicon Valley is also facing allegations that no one over 40 is welcome to apply for a job (women of all ages face similar barriers in the tech industry).

In a more unique claim, PriceWaterhouseCoopers is the defendant in a class-action lawsuit targeting its college campus recruiting program. The 53- and 47-year-old named plaintiffs allege that their applications for entry-level positions were rejected because they did not fit PwC’s usual profile of a Millennial college grad starting a career in accounting. The plaintiff’s pleading scornfully mentions PwC’s brochures featuring lots of smiling 20-somethings. PwC admits that 80% of its employees were born in 1980 or later. Statistics like that make PwC a rich target for an age bias suit by an angry Baby Boomer or Gen X’er.

Smart employers are learning that the emphasis on hiring people under 40 can backfire. In 2016, more than 20,000 age discrimination claims were filed with the EEOC and another 2500 such claims were made to the Texas Workforce Commission that year.

Employers who fail to hire older workers risk more than just lawsuits. They miss out on the loyalty and tenure of older employees. While young people are prone to changing jobs frequently, older applicants tend to stay and be productive for many years. Society for Human Resource Management research shows that the employers they surveyed have discovered that older workers are more “mature/professional” and have a “stronger work ethic”. They found that contrary to stereotypes, older workers actually miss less work days and are excited to learn new things.

Mature workers often have broad networks and contacts. Their work and life experience mean they require little training or supervision. And many applicants born in the 1950s and 1960s have been using computers consistently since the Apple 1 was invented, so their technical skills are well-honed.

These realizations have caused some employers to adopt an “older workers first” preference in their hiring practices.

How can you as an employer avoid age bias mistakes with your recruiting and hiring and take advantage of the benefits of hiring older workers? Continue reading Hiring Older Applicants Protects Against Age Discrimination Claims

Simple Firing Form Keeps Employer’s Story Straight

An employer should always carefully document the reasons for firing an employee. But your termination documentation doesn’t have to be complicated.

I’ve attached a one-page form that you as an employer can quickly fill out and place in the employee’s file whenever you have to terminate the employment of one of your workers. But just because the form is simple doesn’t mean that you shouldn’t put some thought into the process.

Even though Texas is an “at will” employment state, it is wise to have good reasons for firing an employee. You need to stick to those reasons exactly when you complete the unemployment form from the Texas Workforce Commission, if you get a discrimination complaint from the Equal Employment Opportunity Commission and if you hear from the Department of Labor on a retaliation case.

Nothing looks more suspicious to a government investigator or to a jury than an employer’s termination story that changes over time. The all-important consistency of your answers begins with this document filled out on the day that the employee is terminated.

Clients are always asking me what they can do to prevent getting sued by an employee who was fired. Having good, nondiscriminatory reasons for the termination and documenting those reasons carefully are the first steps in preventing a lawsuit, or at least winning one.

Click here to download this simple firing form:

Termination Documentation Form 

Religious and National Origin Discrimination in Heated Political Times

It is easy for employers to lose sight of the obligation to protect all employees regardless of national origin or religion with all the heated political rhetoric we hear right now. But it is still against every federal and state civil rights law for an employer with 15 or more names on the payroll to allow any workplace harassment or discrimination on the basis of where someone is from, what language they speak or what religion they practice.

Since 2001, religious and national origin discrimination cases filed by Muslims and others of Middle Eastern ancestry have increased. Similarly, when illegal immigration is a hot topic, employees of Mexican heritage are often targeted for discrimination.

The Equal Employment Opportunity Commission now receives approximately 3000 charges each year about religious discrimination and 9000-10000 charges of national origin discrimination in the workplace.

In some circumstances, the discrimination is quite blatant.  In Huri v. Office of the Chief Judge of the Circuit Court of Cook County, Illinois (7th Cir. 2015), the Muslim plaintiff of Saudi Arabian origin alleged that her supervisor was a devout, vocal Christian who was unfriendly to her from the beginning. The supervisor allegedly referred to one of Huri’s colleagues as a “good churchgoing Christian” while calling Huri “evil”.  The supervisor reportedly also made a show of saying Christian prayers in the workplace while holding hands with employees other than Huri.

Any employer should be able to quickly recognize the legal and morale implications of such behavior and correct it. But other questions arise when well-meaning employers are confronted with an employee who may be from a culture or religion that the employer is unfamiliar with. That’s why in 2016 the EEOC released guidelines specifically about preventing discrimination against employees on the basis of national origin. These guidelines join the EEOC’s specific guidance on the workplace rights of employees who are perceived to be Muslim or Middle Eastern and the EEOC’s guidance on best practices to prevent religious discrimination in business settings.

What does an employer need to do to prevent or address any hostility in the company towards an employee on the basis of that employee’s national origin or religion? Continue reading Religious and National Origin Discrimination in Heated Political Times