Category Archives: Forms and Policies

Can I Drug Test My Texas Employees for Marijuana?

As 2020 begins, many Texas employers are wondering if they can still drug test their employees for marijuana use. Several states have legalized recreational marijuana and most states allow medical marijuana. So what is a Texas employer to do?

After all, Texas sort of, kinda, decriminalized weed in the 2019 legislative session. When they legalized hemp because it is a drought-resistant agricultural crop, the Texas Legislature effectively said that cannabis with less than 0.3 percent concentration of THC, the psychoactive ingredient that gets you high, is “legal hemp”, while anything above that threshold is illegal marijuana.

However, making the determination of THC concentrations takes sophisticated equipment that the police departments and private testing labs don’t have yet. Many Texas police departments and district attorneys have announced they are not even bothering to prosecute possession of use of small amounts of marijuana. Therefore, it is, for all practical purposes, very difficult to determine if your employees are engaged in legal or illegal activities when it comes to weed.

In addition, the Texas Legislature expanded “compassionate use” (medical marijuana) in Texas, so that specialty doctors can prescribe medical marijuana to treat multiple sclerosis, Parkinson’s disease, ALS, terminal cancer, autism, and many kinds of seizure disorders. Past state law only allowed those very few patients diagnosed with intractable epilepsy to be prescribed medical cannabis products, which in Texas may only contain low levels of THC. Now, many more of your employees may be legally prescribed medical marijuana and you have to worry about violating the Americans with Disabilities Act when testing for marijuana.

Finally, CBD oil, which is a hemp-derived product, is legal in Texas and is being sold on every street corner. Unfortunately, there is little regulation of CBD products, so they may contain surprise ingredients like THC. The Fort Worth Star Telegram recently reported on lawsuit filed by a CBD consumer against a CBD oil manufacturer because he lost his truck-driving job after testing positive for marijuana when he used CBD oil for his aching back.

So do you as a Texas employer still test for marijuana? Yes, legally you still can. Think of weed like alcohol. It is may be more legal than it was before, but it can still impair your employees’ job performance and judgment, so you are entitled to know if your employee is stoned.

Continue reading Can I Drug Test My Texas Employees for Marijuana?

Employer End of the Year Tasks: W-4 and Salary Minimum

Employers must address two important employment law issues before the end of 2019:

  1. Changing the exempt status of employees making a salary of less than $35,568 per year, and
  2. Adoption of the new W-4 form.

I’ve previously explained the new salary minimum for exempt (salaried) employees. In summary, for you to legally pay an employee on salary, that employee must perform exempt duties (such as running a division of the company, performing professional work such as a CPA, or performing non-profitable office duties requiring independent discretion and judgment, such as human resources, benefits coordinator, safety director, marketing director, and others, but not secretarial or bookkeeping) and make at least the new salary minimum per week of $684.00.

If an employee of yours does not meet both of these criteria (exempt duties + salary minimum), you must pay that employee by the hour and pay overtime if the employee works more than 40 hours in any one workweek. In other words, you must change the employee to a non-exempt status under the Fair Labor Standards Act and make that person an hourly employee.

There are a few exceptions to this new salary minimum rule: teachers, doctors, lawyers and outside salespersons are not subject to the salary minimum test. There are also some very  industry-specific, narrow exceptions for taxi drivers, truck drivers, fisherman and some other strange exemptions from overtime that don’t have salary minimums. But the vast majority of workers paid on salary are affected by the requirements of the exemptions.

If you are having any difficulty deciding whether to change an employee to hourly or determining if their duties meet the tests for executive, administrative or professional jobs, please call your employment lawyer immediately to get you into compliance for the January 1, 2020 effective date on the salary minimum rule.

The other big change you as an employer should be aware of is the new W-4 form that the government released on December 5, 2019. It is supposed to be easier to use for your employees.

Here are the things you need to know about this new W-4 as you start the new year:

  • You must use this new W-4 form for any employee you hire beginning on January 1, 2020 and thereafter.
  • Any employee who wants to adjust his/her withholding on January 1, 2020 or after must use the new W-4 to make that adjustment.
  • Current employees do not have to fill out a new W-4 if they don’t want to make any changes, but should consider filling out a new one if they faced an unexpected penalty of bill last year or will have a change in 2020 such as marital status, a new baby or a change in income.
  • Employees filling out the new W-4 must complete steps 1 and 5 on the new form, but may complete steps 2, 3, and/or 4 if applicable. So if you have a new employee fill out the W-4 after New Year’s Day, just check that steps 1 and 5 are complete.
  • Because it is an unfamiliar form and because it encourages people to use the IRS’s new online Tax Withholding Estimator, you should allow employees to take the new W-4 form home so they can have some time to understand and complete it.

Employees Secretly Recording Workplace Conversations

Is it legal for one of your employees to secretly record your conversations with that worker for the employee to use as evidence in a discrimination case? If you are a Texas employer, the answer is “yes”.

Texas is a “one-party” consent state, meaning that as long as one party to the conversation knows about the recording, the recording is legal. This can lead to your employee secretly starting the video app on his smartphone in his pocket just before he walks into your office for a disciplinary meeting. He knows the conversation is being recorded, so as the supervisor, you don’t have to be informed in a one-party consent state like Texas.

More than 30 states have the one-party consent rule, while California, Washington, Florida and a few other states require that every person being recorded give permission to the recording. These “all consent” states make it impossible for a supervisor to be secretly taped when talking to an employee. Making a recording without permission in one of those all consent states can lead to both criminal liability and exclusion of the tapes as evidence in the employee’s discrimination or other lawsuit.

In Texas, however, when an employer is taped, the recordings can be material evidence when an employee sues for discrimination. The Houston Chronicle reported in 2011 that one-third of the discrimination complainants who reached out the Equal Employment Opportunity Commission office in Houston brought audio tapes from their workplace to play for the EEOC investigators.

If there is a recording with you as a supervisor using a racial slur, firing an older employee while saying that the company needs “fresh and energetic workers” or suggesting to a subordinate that he/she can expect a raise if the employee will accompany you to a hotel, you might as well get your checkbook and pen out now to facilitate the inevitable settlement.

Besides the obvious – THINK BEFORE YOU SPEAK, here are some other steps you as an employer can take to protect yourself and the company from employees taping all of your interaction:

  • Adopt a written policy banning recording: As of June 2018, the National Labor Relations Board has newly declared that employers may prohibit employees using recording devices and cameras at work. This is a change from a 2015 NRLB opinion that such policies had a chilling effect on employees asserting their rights to document poor working conditions. In 2018, it was decided that no-photography/no-recording rules have little impact on NLRA-protected rights and could actually improve working conditions by forcing supervisors and subordinates to have open discussions and exchanges of ideas.
  • Ask employees if they are recording: Before you have a hard discussion with an employee, such as a disciplinary warning, ask the employee if he/she is recording the conversation. Make a written note of his response (juries don’t like liars who produce recordings when they stated they weren’t taping). You can remind the employee about the company policy prohibiting such recordings. Ask the employee to set his phone on your desk so you can assure that he isn’t recording or, even better, have him leave it at his desk before coming into your office.
  • Be careful about disciplinary actions for recording: If an employee does record in your workplace, don’t automatically warn or fire that employee even if it violated your policy. You need to know what the employee recorded, so ask to listen to the tapes. If the employee did record or photograph unsafe workplace conditions, sexual propositions, racial epithets, etc., then you need to do a formal investigation and apply effective remedial measures to fix the problem the employee’s recordings uncovered. Then carefully decide with your legal counsel whether disciplining the employee who violated your recording policy could lead to an unfair labor practice, retaliation or whistleblower claim.
  • As the employer, don’t audiotape others in the workplace without consent: While you may have video cameras in the non-private areas of your workplace for safety purposes or to monitor productivity, it becomes more complicated to make audio recordings. Wiretapping (recording the conversations of others without consent when you are not a party to the discussion) is illegal under several statutes. So, you would need permission of every employee as well as the consent of every vendor or guest who comes into your business if you were going to wholesale audiotape all the interactions in your workplace. It can be done, but it is complicated to do correctly, and the wiretapping law is easily violated. And personally, in more than 30 years of practicing employment law, I’ve only seen a handful of situations where widespread audio recording was helpful to a lawsuit defense, much less positive employee relations.

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

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

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

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

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.”

 

         

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