Category Archives: Forms and Policies

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

Employers Required to Display Poster Changes

Effective August 1, 2016, all employers of every size workforce must comply with two new mandatory federal poster changes.  The US Department of Labor (DOL) has updated its Fair Labor Standards Act (FLSA) poster and the Employee Polygraph Protection Act (EPPA) poster.

The changes to the FLSA poster include removing civil penalty amounts, the addition of the riflsaghts of nursing mothers, and a deletion of text under the Child Labor section. Except for a few very narrowly exempted employers, whether you have two employees or two hundred employees, you need to put up this new poster.

The changes to the EPPA poster include a removal of a civil penalty limit, a change in their toll-free phone number, and an additional TTY phone number. All employers, regardless of the number of employees and regardless of whether you would ever consider giving your employees a polygraph, must display this poster in the workplace.

The mandatory notices must be posted immediately. As with all of your employment posters, these two new ones should be displayed in a prominent and conspicuous place in each of your establishments wherever notices can be readily seen by employees and applicants. A spot right next to your time clock or in your employee entrance area is ideal. Just make sure wherever you place your posters is a place that all of your employees regularly enter.

If you need help knowing which posters besides these two you need to have displayed in your workforce, you can find the lists of required federal posters here and Texas posters here. All of the required posters are available online for free. You don’t need to pay a commercial service for a combined poster that isn’t customized to the specifics of your workplace.

Don’t ignore your federal and state posting requirements. The penalties have risen recently. For example, if you have 15 or more employees, the failure to put up the required EEO poster was raised to $210 in 2014 for each of your locations and is now indexed to the Consumer Price Index to increase with inflation. Considering you have as many as twelve posters required in your workplace, you don’t want to be fined for something so easily remedied.

Ban the Felony Box on Applications

If your employment application asks whether the applicant has ever been convicted of a felony, you may need to consider whether to “ban-the-box” that asks that question of your applicants. Why? Because nationally, over 100 cities and counties and over 185 million people live in a ban-the-box or fair-chance jurisdiction.  In addition, the Equal Employment Opportunity Commission is gunning for employers who exclude everyone with a criminal history from employment.

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The “ban the box” movement seeks to have employers consider an individual candidate’s job qualifications while prohibiting the employers from taking into account a candidate’s criminal history in the beginning of the application process.  Ban-the-box aims to provide applicants with a “fair chance” at employment by delaying any consideration of criminal history until a preliminary job offer is made.

Austin is the first city in Texas to “ban the box,” but it is likely that more areas of the Lone Star State will follow in the near future.  As of March 24, 2016, Austin passed the Fair Chance Hiring Ordinance, which prohibits employers from asking about or taking under consideration the criminal history of an individual until after making a conditional employment offer. While this ordinance does not cover state agencies or federal employment, it does apply to any private organization with 15 employees or more in the Austin city limits.

So Texas Panhandle employers don’t have to comply with the Austin ordinance if they have no employees in Austin, but they do need to worry about the EEOC claiming that a local employer discriminates in their hiring on the basis of race or ethnicity (it is the official position of the EEOC that “national data supports a finding that criminal record exclusions have a disparate impact based on race and national origin. The national data provides a basis for the Commission to investigate Title VII disparate impact charges challenging criminal record exclusions”).

So the wise employer will go ahead and take the “ever been convicted of a felony” question off of the application for employment. In addition, for both prudence and economic reasons (detailed criminal background checks aren’t cheap), smart employers will wait until they actually make a conditional job offer before checking the criminal record of a potential employee.

In addition, an employer should not: Continue reading Ban the Felony Box on Applications

Texas Employers Need Snow Day Policy

Texas employers should have a policy to give employees advance warning of what to expect on a snow day, particularly in the Texas Panhandle, where we often have a couple of inclement weather days per year.

The easiest way to determine whether to keep your facility open or not is to follow your local school district’s decisions and let your staff find out through the media. That relieves you of having to communicate the decision to every employee. It is also helpful to your employees to be able to stay home with school-aged children who have no other place to go that day.

Texas and federal law do not specifically dictate when an employer must be open or closed during inclement weather, but they do dictate how compensation must be determined during those times.

Hourly employees do not have to be paid when they perform no work. Exempt employees, however, have to be paid their normal salaries when your facility is closed for weather reasons. On days when the company is open, but a salaried employee chooses not to travel because of road conditions near their house and therefore performs no work all day long, the exempt employee can be docked for that day or be required to use available paid time off.

The other pitfall with inclement weather days occurs when employees work at home on a snow day. If you give your employees the ability to remotely access their computers, if you allow them to take work home, or if you expect them to check emails and return phone calls on a snow day, you will need to pay them for those work hours (non-exempt employees) or that whole day (exempt employees).

I suggest that every employer adopt some kind of inclement weather policy similar to this one: Continue reading Texas Employers Need Snow Day Policy

Texas Discrimination Charges Too Numerous

Texas leads the nation in number of charges filed with the EEOC alleging gender discrimination, race discrimination, age discrimination, and disability discrimination, according to a recent story from the Society for Human Resource Management.  It is time for more employee training and better personnel policies for your Texas business so you don’t have to battle a discrimination charge.

 

Texas Businesses Wrestle with Presence of Handguns

Texas businesses have to wrestle with the laws regarding the carrying of handguns by employees and customers in their workplaces.  I’m amazed at how many businesses I counsel who haven’t even thought about the issue in a state where there are millions of guns. I’ve written about this before (here and here), but there is still confusion about a private business’s rights and responsibilities regarding guns in Texas.

As of January 1, 2016, Texas allowed the more than 825,000 residents of the state who are licensed to carry a handgun to openly display the gun in a shoulder or hip holster. Texans may also choose to conceal the handgun and carry it with them on their bodies or in bags or purses. Texas also has reciprocity agreements to allow visitors licensed in many other states to carry guns here.

The state has only banned handguns completely in the following workplaces:

  • bars or restaurants earning more than 51% of their revenue from alcohol sales (they’ll have a sign up stating that fact),
  • correctional facilities,
  • high school, collegiate and professional sporting events,
  • school grounds and school buses,
  • polling places,
  • courtrooms and court offices,
  • racetracks, and
  • secure areas of airports.

It is also illegal under federal law to carry handguns in federal governmental buildings, such as post offices, federal courthouses, the IRS office, Social Security office, etc.

Hospitals, nursing homes, amusement parks, churches and private businesses like yours can prohibit the carrying of pistols onto the premises by employees and/or visitors, but you have do this proactively. Texas law does not make it illegal to carry a handgun into these premises unless the handgun owner has been notified that he/she cannot carry at that place.

Even without hanging the required signs, employers can put a written policy in their employee manual prohibiting employees from bringing handguns into the workplace. Should you do this? Separating out the politics of that question, it depends on

  • your beliefs about guns in general,
  • how comfortable your employees are being around gun-toting coworkers,
  • whether you believe your business is located in a safe area of town,
  • whether your employees face real dangers in their job that a handgun could minimize,
  • whether you have other ways to keep your employees secure (such as evacuation drills, good lighting, security guards, secured entrances, alarms, etc.)
  • whether your employees are well-trained in the safety and use of a handgun (the required 4-hour Texas licensing course is not adequate for this purpose),
  • whether you want to face disciplining and/or firing a volatile employee wearing a sidearm,
  • whether you are covered by special insurance for handgun liability if there is an accidental discharge of a weapon (your general liability policy probably won’t cover it),
  • whether you are prepared for the lawsuits that may follow a shooting (there is no immunity in the open carry statute for an employer when an employee hurts someone with his weapon), and
  • how your customers will react to seeing your employees armed.

If you can’t decide, have a conversation with your employees to determine the best option for your business and do some objective research for yourself about whether the scenario of a “good guy with a gun” protecting people in your workplace is a real possibility or a myth.

Once you have decided whether to allow your employees to carry handguns and have adopted a written policy explaining the employee rule, the next question is whether to prohibit customers, vendors and other visitors to your workplace from carrying any kind of handgun on your private property. Continue reading Texas Businesses Wrestle with Presence of Handguns

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