Category Archives: Employee Rights

A Texas Employer’s New Year’s Resolutions 2016

The quiet week between Christmas and New Year’s is the perfect time for you as an employer to consider some resolutions for 2016. What can you do differently in 2016 to be a better employer and to avoid stepping on any legal landmines?

From 28 years of experience advising employers like you on employment law issues, here are my suggestions for 2016 resolutions with links to more information from previous posts on this website about these topics:

  • Resolve that you will make a decision about whether your employees and/or customers can openly carry handguns on your business premises. The open carry law goes into effect on January 1 and allows those who are licensed to carry concealed handguns to start carrying them openly in shoulder or hip holsters. You have the right as an employer to prohibit guns completely on your premises by both customers and employees, to just prohibit employees from carrying guns, to prohibit open carry but allow concealed carry, or to allow everyone to freely carry handguns on your premises. If you choose to ban either open or concealed carry by customers, you will have to post the §30.06 (concealed carry) and/or §30.07 (open carry) signs with the proper wording and font size required by the Texas Penal Code. To just prohibit employees from coming to work armed, you only need to add a policy to your employee policy manual. For more information about Texas gun laws in the workplace, click here.
  • Resolve that you will get ready for big changes in the overtime laws. If you have an employee to whom you pay an annual salary of less than $50,440, in mid-2016 you are going to have to move that employee’s compensation to an hourly rate and pay that employee overtime if he/she works more than 40 hours in any one workweek. Click here for more information about that change to the Fair Labor Standards Act regulations.
  • Resolve that you will stop using any kind of “contract labor”. The landscape has just gotten too rocky to use any worker whom you do not treat as an employee. Just give up on the idea that you can save the taxes or avoid the pains of having employees. The government is really cracking down on misclassification of workers as contract labor, day workers or independent contractors. That means that in 2016, you need to pay taxes on every worker, you need to provide every full-time worker with benefits, and you need to accept that you will have liability if that worker hurts or mistreats someone. Click here for more information about the dangers of misclassifying a worker as contract labor. If you think you are the exception to this rule, don’t proceed without a knowledgeable attorney’s legal opinion.
  • Resolve that you will update your employment policy manual. The requirements for written policies changed dramatically in 2015 due to the changes required by the Equal Employment Opportunity Commission, the National Labor Relations Board and the Department of Labor. Your policy manual is out of date unless your employment attorney has made significant revisions in the last six months. Click here for more information about some of the changes that are now required.
  • Resolve that you will learn and apply the new rules regarding pregnant employees. Take your maternity policy out of your handbook (because it will be considered discriminatory) and add instead a policy that allows pregnancy and maternity leave that is identical to what you allow when someone has a disability or serious illness. That means that you can’t set a standard 6-week maternity leave, but may have to be more flexible with each pregnant worker’s individual needs like the Americans with Disabilities Act requires with handicapped employees. Click here for more information about how to update your procedures regarding pregnant employees to comply with the new regulations.

 

 

 

NLRB Crackdown on Employee Handbooks

Even if your HR department is on top of things, some of the policies in your employee handbook probably are now unlawful. Confidentiality policies, professionalism policies, employee conduct policies, solicitation policies, conflict of interest policies, social media policies, and others have come under intense scrutiny by the National Labor Relations Board (“NLRB”) in the last six months. The result could be an unfair labor practices claim filed against your company, even though your company is not unionized. Continue reading NLRB Crackdown on Employee Handbooks

Workplace Posters For Free Online

There are companies that want to sell you expensive workplace posters that you don’t need to purchase because they are available for free online. Many employers are afraid that they don’t know which employment notices must be visible in the workplace, so they fall for the marketing pitch to pay for these expensive commercial posters.

As a Texas employer, have you received advertising in the mail similar to the notice pictured here? Such notices appear official, and can feel almost threatening, with warnings of penalties and fines associated with an employer failing to post current state and federal employment posters in the workplace.

Employment Poster Solicitation

It is not necessary for a Texas employer to pay $84 for the poster offered here. While it is true that posting certain notices and information is legally required, employers need not pay any company for this information. Free copies of the required posters can be found from the websites of each of the federal or Texas agencies that require them. The Texas Workforce Commission has graciously gathered a list of these posters into one place for you here.

Not only are you out the money if you buy one of these expensive posters, but these for-profit posters could actually hurt you if they promise rights to your employees that the law does not give them (such as promising Family and Medical Leave rights if the company has less than 50 employees and isn’t required to provide Family and Medical Leave). You don’t want to obligate yourself to things the law doesn’t require you to provide. The poster “invoice” pictured here didn’t ask the size of the employer’s workforce and apparently was not tailored to the laws to which a particular employer was subject.

As of August 2015, the posters that you as a Texas employer must have on your bulletin board, depending on the size of your workforce, are as follows: Continue reading Workplace Posters For Free Online

Employers Addressing Employee Tattoos

Attorney Vicki Wilmarth provided Texas employers with advice about addressing employee tattoos in Amarillo Magazine’s latest cover story, “Invisible Ink.” Click here  to read the very informative article and for more information about your company dress code regarding facial piercings and body art.

Salary Basis for FLSA Exemptions Raised Dramatically

Claiming that your employees are exempt from overtime is about to become much more difficult with release of new regulations this week by the U.S. Department of Labor (“DOL”) under the Fair Labor Standards Act (“FLSA”).

On June 29, 2015, President Obama announced that the DOL is issuing proposed rules that will probably go into effect in early 2016. Those proposed rules redefine which employees have to earn overtime on their hourly pay instead of being paid as an exempt salaried employee.

The result could be skyrocketing overtime costs and more frequent wage and hour suits against companies that fail to make this transition carefully.

The advantage for an employer of an FLSA exemption has always been that the employer doesn’t have to track that employee’s hours and doesn’t have to pay overtime wages of 1.5 times the hourly rate for anything over 40 hours worked in one workweek. That advantage will no longer be available to you as an employer in 2016 for those employees you pay less than $970 per week, which adds up to $50,440 per year. Continue reading Salary Basis for FLSA Exemptions Raised Dramatically

How Texas Employers Should Respond to Marriage Decision

Today’s U.S. Supreme Court decision that legalized same-sex marriage in all 50 states has Texas employers scrambling for a correct response. Businesses need to consider employee benefits, leaves of absence and many other Texas workplace policies to address the change in the definition of spouse.

Unlike some changes in the law, this one will not wait for Texas employers to catch up. Travis County had already issued 54 licenses to same sex couples by noon today. The Austin American-Statesman reported that clerks in Dallas, Bexar, Tarrant, Midland, McLennan and El Paso counties also began issuing licenses to same-sex couples and judges have already started marrying same-sex couples today in Texas.

Here are some of the employment law considerations that businesses need to address immediately: Continue reading How Texas Employers Should Respond to Marriage Decision

Employee Free Speech on Facebook

Is your employee free to post a Facebook rant about one of your supervisors that says, “Bob is such a nasty M___ F___ don’t know how to talk to people!!! F___ his mother and his entire f___ing family!!! What a loser!!! Vote YES for the UNION!!!”?

Many of my West Texas employers would fire the employee on the spot for that Facebook post.  But if you called an employment attorney, you would be advised against that termination because the National Labor Relations Board (NLRB) just decided last month that the employer involved in this mess had to reinstate the foul-mouthed employee and pay him lost wages.

The NLRB reasoned that the employee’s vulgar rant was “protected, concerted activity” protected by the federal act relating to the formation of unions. The NLRB noted that the harassment policy in the company’s handbook didn’t prohibit vulgar or offensive language, even though that policy was cited as the basis for the discharge. No employee had ever been fired by this employer before for obscene language. In addition, the company was in the middle of an election to decide if the workplace would be unionized.

However, even if your workplace will never be unionized, your actions as an employer can be scrutinized on the basis of employees engaging in “protected, concerted activity” to improve their pay and working conditions. For a summary of the cases that the NLRB has pursued against non-union employers, see the NLRB’s new website dedicated to their enforcement of that law. http://www.nlrb.gov/rights-we-protect/protected-concerted-activity

The NLRB has also been very busy telling non-union employers what can and can’t be in an employee policy manual. On March 18, 2015, the NLRB’s general counsel released a memo concerning those employment policies that the NLRB believes have a “chilling effect” on employees’ rights to engage in protected activities. http://www.nlrb.gov/reports-guidance/general-counsel-memos

Here are precautions you can take as an employer to avoid running afoul of the NLRB or a crafty plaintiffs’ employment lawyer that sues you for your “illegal” handbook policies: Continue reading Employee Free Speech on Facebook

Texas Employers Should Consider Equal Treatments for LGBT Employees

Texas employers traditionally have not had to worry about being accused of discrimination on the basis of sexual orientation, because there is no federal or Texas law that makes sexual orientation discrimination illegal. Additionally, Texas employers previously have not had to provide spousal benefits, such as family coverage under a group health care policy, to same sex spouses.

The laws of Texas have not changed, but the tide is turning for all American employers, and Texas businesses are not immune to that trend. Last month, the U.S. Supreme Court effectively legalized gay marriage in 11 more states when the court declined to hear appeals of lower court decisions finding state laws banning same sex marriage unconstitutional. So recently, gay couples received marriage licenses and were married in several conservative states including Oklahoma, Colorado, North Carolina, Virginia, and even Utah.

At the same time, the EEOC and several courts have been wrestling with Title VII gender discrimination claims by lesbian, gay, bisexual and transgendered (LGBT) employees who say their employers have discriminated against them. Eighteen states and the District of Columbia have laws explicitly protecting LGBT employees. 91 percent of Fortune 500 companies already prohibit this kind of discrimination. But in the states where sexual orientation laws are not in place, employers can expect the EEOC and disgruntled workers to file cases to try to change the law through the court system if not the legislature.

Finally, President Obama has issued an executive order requiring that businesses that do at least $10,000 in federal work annually have to protect LGBT employees from discrimination. This affects an estimated 22 percent of the civilian workforce nationwide and many employers in Texas.

All of this means that Texas employers are engaging in very risky behavior if the employer doesn’t protect its employees from discrimination on the basis of sexual orientation. In addition, many Texas employers have retail locations or offices in the 30 states that recognize same sex marriage. Therefore, consistency in employment policies means that most of these employers should go ahead and change the definition of “spouse” in their policies and insurance plans to include same sex spouses regardless in which state the employee resides.

You may not agree politically with these changes sweeping the country, but as a prudent employer, you should consider whether the wise business decision for your company is to protect LGBT employees and treat them equally when it comes to benefits.

Employer’s Prompt Actions Defeat Harassment Claim

As an employer with at least 15 names on your payroll, you should take any claim of sexual, racial or other illegal harassment seriously and work quickly to determine the validity of the claim, to put a stop to the offending behavior, and to deal with the offender.

The necessity of quick action was confirmed in Williams-Boldware v. Denton County. In that case, the Fifth Circuit Court of Appeals decided that an employer’s “prompt remedial action” stopped the offending behavior, so that the claims of racial harassment and hostile work environment were defeated.

The key word here is “prompt”. In this case, within 24 hours of a racial harassment complaint being made, the supervisor had reported the claim to Human Resources, which began investigating. The co-worker who had made racially inappropriate comments immediately issued a written apology and the employer met with the complainant to discuss the claim, letting her know they took the matter very seriously, and they even asked for her input in deciding the best course of action to take. This included reprimanding the co-worker, requiring him to attend diversity training, and transferring the complainant to another department so there would be no more contact between them.

The best way to prevent racial, sexual, or other illegal harassment from ever becoming an issue is to make sure that your employees are aware of company policies regarding harassment in the workplace. You should have a written policy in place that clearly states what behavior is expected of your employees, what is not tolerated, and what the consequences will be for violating company policy. In addition, you should take serious and immediate steps to investigate and stop the harassment when a complaint is made.

Employers Can’t Prohibit Wage Discussions

Many employers require their employees to sign and abide by the terms of some type of confidentiality agreement, confidentiality clause, or non-disclosure agreement as a condition of employment.  Usually, the intent of such an agreement is to protect sensitive information and prevent such information from being discussed outside of the company.  But employers should carefully consider the language and wording of confidentiality agreements to make sure they are in compliance with the standards set forth by the National Labor Relations Act (NLRA).

While you might think you are well within your rights to require a confidentiality agreement that prohibits an employee from discussing such things as company “financial information” or “personnel information”, the Fifth Circuit of Appeals (which decides federal appeals for cases originating in Texas) ruled in Flex Frac Logistics v. NLRB that such an agreement is unlawful. The ruling applies even to non-unionized companies like yours.

The Fifth Circuit decided that by prohibiting the employee from discussing company financial information and/or personnel information, the employer was infringing upon the employee’s right to discuss and negotiate the terms of their employment, including salary and hours. The NRLA protects activities by employees that would aid in the formation of unions, including free discussion of the employer’s pay practices.

Therefore, if you are contemplating incorporating some type of required confidentiality agreement or non-disclosure agreement into your company policies and procedures, or if you already have an existing confidentiality policy, the terms and conditions should be carefully reviewed to insure compliance with the NLRA.  And keep in mind that the NLRA applies to ALL employers, regardless of whether or not the employer has union employees.  Also, make sure you don’t have any other policies (written or generally understood) or employment agreements that prohibit employees from discussing wages.